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
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN THE COUNTY OF NAPA
12 LISA KEITH, CASE NO: 22CV001269
13 Plaintiff, PLAINTIFF, LISA KEITH’S OPPOSITION
TO DEFENDANTS’ MOTION IN LIMINE
14 v. NO. 1: PRECLUDE EVIDENCE AND
ARGUMENT CONTRARY TO THE
15 CELESTE WHITE, an individual, ROBERT PLAIN MEANING OF THE
WHITE, an individual, the VALLEY ROCK UNAMBIGUOUS LIQUIDATED
16 FOUNDATION, aka THE BAR 49 DAMAGES CLAUSE
FOUNDATION, a charitable organization, and
17 DOES 1-50, INCLUSIVE,
Trial Management Conference: March 28, 2024
18 Defendants. Time: 8:30 a.m.
Judge: Hon. Scott R.L. Young
19 Dept.: B
Trial Date: April 2, 2024
20 Time: 8:30 a.m.
Judge: Hon. Scott R.L. Young
21 Dept.: B
Complaint Filed: October 25, 2022
22 FAC Filed: March 8, 2023
23
24
25 Plaintiff, Lisa Keith, (“Plaintiff”) hereby submits her opposition (“Opposition”) to Defendants’
26 (“Defendants”) Motion in Limine No. 1: Preclude Evidence and Argument Contrary to the Plain
27 Meaning of the Unambiguous Liquidated Damages Clause (“Motion”), filed herein by Defendants and
28 respectfully alleges as follows:
1
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1
1 I. ARGUMENT
2 1. Defendants’ Motion in Limine No. 1 ask the Court to limit Plaintiff’s ability to offer
3 evidence and testimony regarding Defendants’ most egregious breach of the Settlement Agreement, their
4 publication of the press releases via PRNewswire and Businesswire, two companies which disseminated
5 and republished the press release (at Defendants’ direction and request) to hundreds or thousands of
6 news organizations. Defendants’ highly limited interpretation of the Non-Disparagement Provision must
7 be soundly rejected.
8 2. Defendants’ “plain language” argument studiously avoids significant portions of the plain
9 language of the provision. In particular, Defendants skate over the plain language of the phrase “through
10 any medium or by any means”, which would necessarily include the intentional use of large-volume
11 means of dissemination for republication (i.e. by PRNewswire, Businesswire, or Twitter). Defendants
12 would have the Court find that a purposeful hiring of PRNewswire to engage in a press-release blast of
13 national or even international scope to constitute “one” communication by Defendants. This ignores the
14 “means” portion of the Provision. Defendants intentionally chose a “means” that allowed them to
15 disseminate and republish the Press Releases as widely as possible. Defendants argue, literally, that if
16 they hired one man to talk to a thousand other people negatively about Plaintiff, that only constitutes one
17 communication. This argument is a logical fallacy. By choosing a concert venue to communicate
18 negatively about the Plaintiff, instead of a restaurant booth, Defendants are utilizing a particular means
19 of communication, one that ensures that the negative statements are communicated many, many times,
20 not just once.
21 3. The jury should hear evidence about the number of recipients of the press release, in order
22 to properly gauge the extent of the breach. Absolute data about the number of news organizations to
23 whom the press release was offered is nearly impossible to obtain. Actual data about how many news
24 organizations actually picked up the Press Releases is concrete evidence of communications, even if
25 necessarily smaller than the number that Businesswire actually offered the Press Releases to.
26 4. Finally, Defendants attempt to bar evidence and testimony about communications which,
27 quote, “merely mention the press release without mentioning Plaintiff’s name”. By this argument,
28 Defendants attempt to argue that the emailing or sending of a “link” to the press release cannot be a
2
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1
1 communication if Plaintiff’s name is not contained in the link. Again, this ignores the plain language of
2 the “means” portion of the Provision. If a communication was sent to hundreds or thousands of news
3 organizations by means of a “link”, then the link is only the means, not the communication itself.
4 Defendants in essence argue that a letter containing the press release is not a communication, if the
5 outside of the envelope does not mention the Plaintiff’s name. This is contrary to the plain language of
6 the statute. Defendants should not be allowed to avoid liability based on legal sophistry, and a jury should
7 be allowed to hear evidence related to all of the various means by which Defendants breached the
8 Settlement Agreement.
9 5. Defendants finally, again, argue that only a communication which mentions “Lisa Keith”
10 by name can be negative. This ignores the fact that the plain language of the Provision does not require
11 the negative statement to include the name of the party so maligned. And indeed, one of the Defendants’
12 statements that was most negative referred to Lisa Keith as “Plaintiff”, the statement that the Court found
13 no evidence to support the Plaintiff’s claims.
14 6. The “Single-Publication” Rule does not apply to this case. Defendants’ argument here is
15 similar to their now-discredited argument that defamation law applies. This is not a libel case: it is a
16 breach of contract case. As the Court has already held, in its Order denying Defendants’ Motion for
17 Summary Judgment/Adjudication on the breach of contract claim, “Defendants make no showing, here,
18 that the language quoted above, or any other language in the subject Non-Disparagement Provision,
19 when considered in the context of the settlement agreement as a whole, reflects an intention, “to prohibit
20 only defamatory statements and not factually accurate ones.” (Order, pg. 6.) Defendants’ argument that
21 somehow defamation or libel law apply has been soundly rejected multiple times, as this Court explicitly
22 noted: “This is exactly what the Court did in ruling on Defendants’ Anti-Slapp motion.” (Order, pg. 7,
23 fn. 2.)
24 7. However, even if it did apply, the cited authorities support Plaintiff. As Defendants argue,
25 “under the single-publication rule, a new cause of action for defamation arises only when the defamer
26 ‘repeats or recirculates his or her remarks to a new audience.” (Def. Mot. No. 1 14:24-26.) Here, the
27 Defendants have “recirculated” their remarks to hundreds or thousands of news organizations spread
28 around the country and globe. These are communications to hundreds or thousands of “new audiences.”
3
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1
1 Even under defamation law, “it is well-established that damages must be based on the extent of
2 circulation.” (Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc. (2002) 314 F.3d 48, 61.) In
3 evaluating presumed damages, “the extent of the circulation of the defamation is admissible as evidence
4 of the injury done to the person defamed.” (53 C.J.S. (2009) Libel and Slander; Injurious Falsehood §
5 304.) “[The] written word leaves a more permanent blot on one’s reputation, the written word is capable
6 of wider circulation, and reducing a defamation to writing requires greater deliberation and intention on
7 the part of the one who records it.” (Preston Hollow Capital LLC v. Nuveen LLC (Chancery Court -
8 2019) 216 A.3d 1, 10.)
9 8. Strictly for the purpose of proving the number of communications pursuant to the
10 liquidated damages clause, this case, although a breach of contract case, is analogous to a defamation
11 case. Under the applicable California law:
12 • “The person who has published defamatory matter can be liable for damages resulting from
each republication by others if reasonably foreseeable.” (Di Giorgio Corp. v Valley Labor
13 Citizen (1968) 260 CA2d 268, 273.)
14 • The “[a]uthor is liable where they authorized and/or intended republication. (Draper v.
Hellman Com. T. & S. Bank (1928) 203 Cal. 26.)
15
• The “[p]rincipal is liable for torts of his agent conducted within scope of his
16 authority.” (Housewright v. Pacific Far East Line, Inc. (Cal. App. 1st Dist. 1964), 229 Cal.
App. 2d 259, 40 Cal. Rptr. 208, 1964 Cal. App. LEXIS 982).
17
• The “[p]rincipal is liable for negligent acts of his agent done within scope of latter’s
18 authority.” (Alvarez v. Felker Mfg. Co. (Cal. App. 1st Dist. 1964), 230 Cal. App. 2d 987,
41 Cal. Rptr. 514, 1964 Cal. App. LEXIS 953.)
19
Thus, the number of “communications” includes:
20
Each and every conversation, phone call, or email between Defendants, their agents, and
21 anyone else, that mentions or discusses the drafting of the press releases;
22 Each and every instance of the press releases being published by or at the direction of
Defendants and/or their agents (blog, social media, news distribution service, etc.);
23
Each and every instance of the press releases being published by Singer Associates (blog,
24 social media, news distribution service, etc.);
25 Each and every instance of the press releases being sent to a distribution service
(PRNewswire, BusinessWire, EIN Presswire, etc.) by or at the direction of Defendants
26 and/or their agents; and
27 Each and every instance of the press releases being sent by a distribution service to a news
organization asking that they “pick up” the press releases, regardless of whether or not said
28 news organization did so.
4
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1
1 9. It is clear that Defendants now wish they had only sent a few emails containing the
2 negative statements to colleagues and well-wishers. They chose to disseminate their negative statements
3 in the broadest manner, to reach the largest number of readers they could afford. The jury should hear
4 evidence of the number of communications made (at the Defendants’ explicit direction) by means of
5 PRNewswire and its ilk.
6 II. CONCLUSION
7 10. Based on the foregoing, Defendants’ Motion must be denied.
8 III. PRAYER
9 WHEREFORE, Plaintiff requests the following:
10 1. That the Court deny the Motion in its entirety and deny all relief requested; and
11 2. For such other and further relief as the Court may deem proper.
12
13 Respectfully submitted,
14 JOHNSTON, KINNEY & ZULAICA LLP
15
16 Dated: March 21, 2024 By:
John S. Rueppel, Esq.
17 Ann K. Kavanagh, Esq.
Angie Lam, Esq.
18 Attorneys for Plaintiff
19
20
21
22
23
24
25
26
27
28
5
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1
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 March 21, 2024, I served the foregoing document(s):
7
PLAINTIFF, LISA KEITH’S OPPOSTION TO DEFENDANTS’ MOTION IN LIMINE
8 NO. 1: PRECLUDE EVIDENCE AND ARGUMENT CONTRARY TO THE PLAIN
MEANING OF THE UNAMBIGUOUS LIQUIDATED DAMAGES CLAUSE
9
I served the documents on the person or persons listed below as follows:
10
Jeffrey E. Tsai
11 Kathleen S. Kizer
DLA PIPER LLP (US)
12 555 Mission Street, Suite 2400
San Francisco, CA 94105
13 Jeff.tsai@us.dlapiper.com
Katy.kizer@us.dlapiper.com
14
Attorneys for Defendants
15
[X] (BY EMAIL) Pursuant to Code of Civil Procedure section 1010.6, I caused the document(s) to
16 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
17 transmission was unsuccessful.
18
I declare under penalty of perjury under the laws of the State of California that the foregoing is
19 true and correct.
20
Executed on March 21, 2024, at Antioch, California.
21
22
23 Carolina Ramos
4857-8815-9150, v. 4
24
25
26
27
28
6
PLAINTIFF,
f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1
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 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN THE COUNTY OF NAPA 12 LISA KEITH, CASE NO: 22CV001269 13 Plaintiff, PLAINTIFF, LISA KEITH’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE 14 v. NO. 1: PRECLUDE EVIDENCE AND ARGUMENT CONTRARY TO THE 15 CELESTE WHITE, an individual, ROBERT PLAIN MEANING OF THE WHITE, an individual, the VALLEY ROCK UNAMBIGUOUS LIQUIDATED 16 FOUNDATION, aka THE BAR 49 DAMAGES CLAUSE FOUNDATION, a charitable organization, and 17 DOES 1-50, INCLUSIVE, Trial Management Conference: March 28, 2024 18 Defendants. Time: 8:30 a.m. Judge: Hon. Scott R.L. Young 19 Dept.: B Trial Date: April 2, 2024 20 Time: 8:30 a.m. Judge: Hon. Scott R.L. Young 21 Dept.: B Complaint Filed: October 25, 2022 22 FAC Filed: March 8, 2023 23 24 25 Plaintiff, Lisa Keith, (“Plaintiff”) hereby submits her opposition (“Opposition”) to Defendants’ 26 (“Defendants”) Motion in Limine No. 1: Preclude Evidence and Argument Contrary to the Plain 27 Meaning of the Unambiguous Liquidated Damages Clause (“Motion”), filed herein by Defendants and 28 respectfully alleges as follows: 1 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1 1 I. ARGUMENT 2 1. Defendants’ Motion in Limine No. 1 ask the Court to limit Plaintiff’s ability to offer 3 evidence and testimony regarding Defendants’ most egregious breach of the Settlement Agreement, their 4 publication of the press releases via PRNewswire and Businesswire, two companies which disseminated 5 and republished the press release (at Defendants’ direction and request) to hundreds or thousands of 6 news organizations. Defendants’ highly limited interpretation of the Non-Disparagement Provision must 7 be soundly rejected. 8 2. Defendants’ “plain language” argument studiously avoids significant portions of the plain 9 language of the provision. In particular, Defendants skate over the plain language of the phrase “through 10 any medium or by any means”, which would necessarily include the intentional use of large-volume 11 means of dissemination for republication (i.e. by PRNewswire, Businesswire, or Twitter). Defendants 12 would have the Court find that a purposeful hiring of PRNewswire to engage in a press-release blast of 13 national or even international scope to constitute “one” communication by Defendants. This ignores the 14 “means” portion of the Provision. Defendants intentionally chose a “means” that allowed them to 15 disseminate and republish the Press Releases as widely as possible. Defendants argue, literally, that if 16 they hired one man to talk to a thousand other people negatively about Plaintiff, that only constitutes one 17 communication. This argument is a logical fallacy. By choosing a concert venue to communicate 18 negatively about the Plaintiff, instead of a restaurant booth, Defendants are utilizing a particular means 19 of communication, one that ensures that the negative statements are communicated many, many times, 20 not just once. 21 3. The jury should hear evidence about the number of recipients of the press release, in order 22 to properly gauge the extent of the breach. Absolute data about the number of news organizations to 23 whom the press release was offered is nearly impossible to obtain. Actual data about how many news 24 organizations actually picked up the Press Releases is concrete evidence of communications, even if 25 necessarily smaller than the number that Businesswire actually offered the Press Releases to. 26 4. Finally, Defendants attempt to bar evidence and testimony about communications which, 27 quote, “merely mention the press release without mentioning Plaintiff’s name”. By this argument, 28 Defendants attempt to argue that the emailing or sending of a “link” to the press release cannot be a 2 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1 1 communication if Plaintiff’s name is not contained in the link. Again, this ignores the plain language of 2 the “means” portion of the Provision. If a communication was sent to hundreds or thousands of news 3 organizations by means of a “link”, then the link is only the means, not the communication itself. 4 Defendants in essence argue that a letter containing the press release is not a communication, if the 5 outside of the envelope does not mention the Plaintiff’s name. This is contrary to the plain language of 6 the statute. Defendants should not be allowed to avoid liability based on legal sophistry, and a jury should 7 be allowed to hear evidence related to all of the various means by which Defendants breached the 8 Settlement Agreement. 9 5. Defendants finally, again, argue that only a communication which mentions “Lisa Keith” 10 by name can be negative. This ignores the fact that the plain language of the Provision does not require 11 the negative statement to include the name of the party so maligned. And indeed, one of the Defendants’ 12 statements that was most negative referred to Lisa Keith as “Plaintiff”, the statement that the Court found 13 no evidence to support the Plaintiff’s claims. 14 6. The “Single-Publication” Rule does not apply to this case. Defendants’ argument here is 15 similar to their now-discredited argument that defamation law applies. This is not a libel case: it is a 16 breach of contract case. As the Court has already held, in its Order denying Defendants’ Motion for 17 Summary Judgment/Adjudication on the breach of contract claim, “Defendants make no showing, here, 18 that the language quoted above, or any other language in the subject Non-Disparagement Provision, 19 when considered in the context of the settlement agreement as a whole, reflects an intention, “to prohibit 20 only defamatory statements and not factually accurate ones.” (Order, pg. 6.) Defendants’ argument that 21 somehow defamation or libel law apply has been soundly rejected multiple times, as this Court explicitly 22 noted: “This is exactly what the Court did in ruling on Defendants’ Anti-Slapp motion.” (Order, pg. 7, 23 fn. 2.) 24 7. However, even if it did apply, the cited authorities support Plaintiff. As Defendants argue, 25 “under the single-publication rule, a new cause of action for defamation arises only when the defamer 26 ‘repeats or recirculates his or her remarks to a new audience.” (Def. Mot. No. 1 14:24-26.) Here, the 27 Defendants have “recirculated” their remarks to hundreds or thousands of news organizations spread 28 around the country and globe. These are communications to hundreds or thousands of “new audiences.” 3 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1 1 Even under defamation law, “it is well-established that damages must be based on the extent of 2 circulation.” (Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc. (2002) 314 F.3d 48, 61.) In 3 evaluating presumed damages, “the extent of the circulation of the defamation is admissible as evidence 4 of the injury done to the person defamed.” (53 C.J.S. (2009) Libel and Slander; Injurious Falsehood § 5 304.) “[The] written word leaves a more permanent blot on one’s reputation, the written word is capable 6 of wider circulation, and reducing a defamation to writing requires greater deliberation and intention on 7 the part of the one who records it.” (Preston Hollow Capital LLC v. Nuveen LLC (Chancery Court - 8 2019) 216 A.3d 1, 10.) 9 8. Strictly for the purpose of proving the number of communications pursuant to the 10 liquidated damages clause, this case, although a breach of contract case, is analogous to a defamation 11 case. Under the applicable California law: 12 • “The person who has published defamatory matter can be liable for damages resulting from each republication by others if reasonably foreseeable.” (Di Giorgio Corp. v Valley Labor 13 Citizen (1968) 260 CA2d 268, 273.) 14 • The “[a]uthor is liable where they authorized and/or intended republication. (Draper v. Hellman Com. T. & S. Bank (1928) 203 Cal. 26.) 15 • The “[p]rincipal is liable for torts of his agent conducted within scope of his 16 authority.” (Housewright v. Pacific Far East Line, Inc. (Cal. App. 1st Dist. 1964), 229 Cal. App. 2d 259, 40 Cal. Rptr. 208, 1964 Cal. App. LEXIS 982). 17 • The “[p]rincipal is liable for negligent acts of his agent done within scope of latter’s 18 authority.” (Alvarez v. Felker Mfg. Co. (Cal. App. 1st Dist. 1964), 230 Cal. App. 2d 987, 41 Cal. Rptr. 514, 1964 Cal. App. LEXIS 953.) 19 Thus, the number of “communications” includes: 20 Each and every conversation, phone call, or email between Defendants, their agents, and 21 anyone else, that mentions or discusses the drafting of the press releases; 22 Each and every instance of the press releases being published by or at the direction of Defendants and/or their agents (blog, social media, news distribution service, etc.); 23 Each and every instance of the press releases being published by Singer Associates (blog, 24 social media, news distribution service, etc.); 25 Each and every instance of the press releases being sent to a distribution service (PRNewswire, BusinessWire, EIN Presswire, etc.) by or at the direction of Defendants 26 and/or their agents; and 27 Each and every instance of the press releases being sent by a distribution service to a news organization asking that they “pick up” the press releases, regardless of whether or not said 28 news organization did so. 4 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1 1 9. It is clear that Defendants now wish they had only sent a few emails containing the 2 negative statements to colleagues and well-wishers. They chose to disseminate their negative statements 3 in the broadest manner, to reach the largest number of readers they could afford. The jury should hear 4 evidence of the number of communications made (at the Defendants’ explicit direction) by means of 5 PRNewswire and its ilk. 6 II. CONCLUSION 7 10. Based on the foregoing, Defendants’ Motion must be denied. 8 III. PRAYER 9 WHEREFORE, Plaintiff requests the following: 10 1. That the Court deny the Motion in its entirety and deny all relief requested; and 11 2. For such other and further relief as the Court may deem proper. 12 13 Respectfully submitted, 14 JOHNSTON, KINNEY & ZULAICA LLP 15 16 Dated: March 21, 2024 By: John S. Rueppel, Esq. 17 Ann K. Kavanagh, Esq. Angie Lam, Esq. 18 Attorneys for Plaintiff 19 20 21 22 23 24 25 26 27 28 5 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1 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 March 21, 2024, I served the foregoing document(s): 7 PLAINTIFF, LISA KEITH’S OPPOSTION TO DEFENDANTS’ MOTION IN LIMINE 8 NO. 1: PRECLUDE EVIDENCE AND ARGUMENT CONTRARY TO THE PLAIN MEANING OF THE UNAMBIGUOUS LIQUIDATED DAMAGES CLAUSE 9 I served the documents on the person or persons listed below as follows: 10 Jeffrey E. Tsai 11 Kathleen S. Kizer DLA PIPER LLP (US) 12 555 Mission Street, Suite 2400 San Francisco, CA 94105 13 Jeff.tsai@us.dlapiper.com Katy.kizer@us.dlapiper.com 14 Attorneys for Defendants 15 [X] (BY EMAIL) Pursuant to Code of Civil Procedure section 1010.6, I caused the document(s) to 16 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 17 transmission was unsuccessful. 18 I declare under penalty of perjury under the laws of the State of California that the foregoing is 19 true and correct. 20 Executed on March 21, 2024, at Antioch, California. 21 22 23 Carolina Ramos 4857-8815-9150, v. 4 24 25 26 27 28 6 PLAINTIFF, f LISA KEITH’S OPPPOSITION TO DEFENDANTS’ MIL #1