Preview
Co mn nn ew HN
Edward Swanson, SBN 159859. EIECTRONICAILY
ed@smllp.law
August Gugelmann, SBN 240544 FILE D ;
SWANSON & MeNAMARA LLP ee ee
ic
300 Montgomery Street, Suite 1100 99/27/2017
San Francisco, California 94104 BY:LINDA ALLSTON
Deputy Cler!
Telephone: (415) 477-3800
Facsimile: (415) 477-9010
Attorneys for Defendant
SHANE CLARIDGE KELLEY, as Executor of the Thomas F. White Estate
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION
PATRICK KELLY, No. CGC-13-535823
Plaintiff, DECLARATION OF EDWARD W.
SWANSON IN OPPOSITION TO
vs. PLAINTIFF’S MOTION FOR LEAVE TO
FILE VERIFIED SECOND AMENDED
SHANE CLARIDGE KELLEY, as Executor | COMPLAINT
of the Thomas F. White Estate, Date: October 11, 2017
Location: Dept. 302
Defendant. Time: BIO Am-.
Judge: Hon. Harold E. Kahn
Action Filed: December 2, 2013
Trial Date: | October 23, 2017
I, Edward W. Swanson, declare as follows:
1) lam an attorney licensed to practice in the state of California and admitted to the
Bar of this Court. I represent defendant Shane Claridge Kelley, as Executor of the Thomas F.
White Estate. Unless otherwise noted, I make this declaration of my own personal knowledge
and could testify competently as to matters stated herein.
2) In my view, necessary discovery into an alleged breach of the purported
Employment Contract would involve, at a minimum, inquiry into the terms of the EmploymentCwm NA HW Bw HY =
DA RF BR FS
Contract and whether enforcement is barred by operation of law; (b) whether Plaintiff fulfilled
his own obligations under any alleged agreement with White; and (c) what Plaintiff has done to
mitigate any damages arising from the alleged breach of the contract by White. Because
Plaintiff's complaint does not raise such a claim, Defendant has not undertaken to seek discovery
into these matters.
3) Attached hereto as Exhibit A_is a true and correct copy of excerpts of Plaintiff's
testimony at his deposition.
I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed on September 26, 2017, at San Francisco, California.
Edward W. Swanson
Declarant
2
Declaration of Edward W. Swanson in Opposition to Motion for Leave to Amend
Kelly v. Kelley, CGC-13-535823EXHIBIT ACERTIFIED COPY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
PATRICK KELLY,
Plaintiff,
vs. Case No. CGC-13-535823
SHANE CLARIDGE WHITE, as
Executor of the Thomas F.
White Estate,
Defendant.
VIDEOTAPED DEPOSITION of PATRICK KELLY
April 14, 2017
Reported by: Cherree P. Peterson, CSR No. 11108
421913 BARKLEY
Court Reporters
‘barkley.com1] upon Tom's orders.
2 Q. So what I'm trying to get at, is the records
3 that were submitted to Tom's accountant, will that
4 reflect all of the money that was spent or not?
174733 5 A. It will reflect all the money that was spent,
6| yes.
7 Q. Let's talk about your damages. You're claiming
8|/ 325,000 that you say Tom didn't pay you of your bonus
9! for the Cambodian contract; correct?
17:47:45 10 A. That's correct.
11 And you are claiming 158,900 that Tom didn't
12| pay you to fund Logical Reality; is that correct?
13 A. That's correct.
14 And --
17:48:00 15 A. And I might say that that's based on his -- not
16) the original agreement, but his commitment, the same
17} agreement that -- to delay payment where he had -- where
18| he restated -- where he stated that he would commence
19 funding again on that when he was released from prison.
7419 20) That was part of the incentives that he was giving me to
21} agree to his demand to delay payment.
22 Q. And how do you calculate that figure for
23| Logical Reality? Where do you come up with that figure?
24 A. That's the 192- in the budget less what he
17:48:36 25 paid.
239
(BARKLEY
PATRICK KELLY ‘[Gouet Reporters1 Q And is Logical Reality still functioning today?
2 A. No.
3 Q When did it go offline?
4 A. It went -- it went offline I believe roughly a
174851 5| year before Tom terminated me.
6 Q. Before --
7 A. I was too busy. Maybe more. One or two years
8| before Tom terminated me. I was too busy with his stuff
9) to deal with the website.
17:49:01 10 Q. Before it went offline, did it have a revenue
11 stream?
12 A. No.
13 Q. Did it ever turn a profit?
14 A. No.
47:49:10 15 Q. You are claiming $30,270 in waiting time
16 penalties under the labor code; correct?
17 A. That's correct.
18 Q. And you say you suffered emotional distress,
19| mental pain and suffering; is that correct?
17:49:28 20 A. That's correct. And that's tied to what the --
21| well, let me just stop there. That's correct.
22 Q. Did you see any medical doctor of any sort in
23] connection with the emotional distress, mental pain and
24 suffering that you experienced as a result of not
174947 25| receiving these payments?
240
BARKL
PATRICK KELLY ae1 A. I did not see a doctor. Well, I have seen
2| doctors as to my high blood pressure and -- which you
3| know has some association with that.
4 Q. Do you have any medical opinions supporting the
475012 5 fact that your high blood pressure has some association
6| with not having been paid money in connection with
7| funding Logical Reality and receiving the bonus you
8 claim that you're entitled to under the Cambodian
9 contract?
17:50:23 10 A. No. But I believe there are well-established
11} decisions that -- oh, I'm not going to remember that
12 now. I'm sorry. I can't. There are some decisions
13 that show something to the effect that my having to
14 litigate this and go through what I've gone through is
17:51:05 15 -- is emotionally stressful.
16 Q. So is the claim based on your having to
i7| litigate this or is your claim based on the nonpayment?
18| What's your claim based on for the waiting time
19| penalties?
4751:19 20 A. I'm sorry. I can't recall right now what that
21 is. But if I can, I can forward it to you later.
22 Q. Are those all the damages that you're seeking
23 in this case?
24 A. Presently. But this case -- well, no. It's
17514125) not. I had filed a motion for an amended claim to
241
BARKLEY
PATRICK KELLY faeele wiped1| submit an amended claim that was denied. That claim had
2| all sorts of damage in there from a conspiracy. As I've
3} mentioned to Britt, my intent is to -- is to -- I'm
4| getting tired -- my intent is to appeal that decision.
176210 5| And I think I stand a fairly good chance to win that
6| appeal based on what happened in the hearing and the
7 judge's order.
8 MR. SWANSON: Okay. Let's just take a brief
9| break if we could, and I think we may be done. Just
17523010} hold on one second.
11 THE VIDEOGRAPHER: Going off the record. The
12 time is 5:52 p.m.
13 (Whereupon the proceedings were concluded at
14 5:52 p.m.)
15 ---000---
16| //
17\ //
18 I have read the foregoing deposition
19 transcript and by signing hereafter, approve same.
20
21| Dated
22
23
(Signature of Deponent)
24
25
242
BARKLEY
PATRICK KELLY Todats Rineteore!24
25
DEPOSITION OFFICER'S CERTIFICATE
(Civ. Proc. § 2025.520(e))
STATE OF CALIFORNIA )
COUNTY OF CONTRA COSTA )
I, CHERREE P. PETERSON, CSR #11108, hereby
certify:
I am a duly qualified Certified Shorthand
Reporter, in the State of California, holder of
Certificate Number CSR 11108 issued by the Court
Reporters Board of California and which is in full force
and effect. (Bus. & Prof. § 8016)
I am not financially interested in this action
and am not a relative or employee of any attorney of the
parties, or of any of the parties. (Civ. Proc. §
2025.320-(a) )
I am authorized to administer oaths or
affirmations pursuant to California Code of Civil
Procedure, Section 2093(b) and prior to being examined,
the deponent was first placed under oath or affirmation
by me. (Civ. Proc. §§ 2025.320, 2025.540(a))
I am the deposition officer that
stenographically recorded the testimony in the foregoing
deposition and the foregoing transcript is a true record
of the testimony given. (Civ. Proc. § 2025.540(a))
243
PATRICK KELLYI have not, and shall not, offer or provide any
services or products to any party's attorney or third
party who is financing all or part of the action without
first offering same to all parties or their attorneys
attending the deposition and making same available at
the same time to all parties or their attorneys. (Civ.
Proc. § 2025.320(b))
I shall not provide any service or product
consisting of the deposition officer's notations or
comments regarding the demeanor of any witness,
attorney, or party present at the deposition to any
party or any party's attorney or third party who is
financing all or part of the action, nor shall I collect
any personal identifying information about the witness
as a service or product to be provided to any party or
third party who is financing all or part of the action.
(Civ. Proc. § 2025.320(c))
Dated: April 26, 2017
244
PATRICK KELLY
Preview
Co mn nn ew HN Edward Swanson, SBN 159859. EIECTRONICAILY ed@smllp.law August Gugelmann, SBN 240544 FILE D ; SWANSON & MeNAMARA LLP ee ee ic 300 Montgomery Street, Suite 1100 99/27/2017 San Francisco, California 94104 BY:LINDA ALLSTON Deputy Cler! Telephone: (415) 477-3800 Facsimile: (415) 477-9010 Attorneys for Defendant SHANE CLARIDGE KELLEY, as Executor of the Thomas F. White Estate SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION PATRICK KELLY, No. CGC-13-535823 Plaintiff, DECLARATION OF EDWARD W. SWANSON IN OPPOSITION TO vs. PLAINTIFF’S MOTION FOR LEAVE TO FILE VERIFIED SECOND AMENDED SHANE CLARIDGE KELLEY, as Executor | COMPLAINT of the Thomas F. White Estate, Date: October 11, 2017 Location: Dept. 302 Defendant. Time: BIO Am-. Judge: Hon. Harold E. Kahn Action Filed: December 2, 2013 Trial Date: | October 23, 2017 I, Edward W. Swanson, declare as follows: 1) lam an attorney licensed to practice in the state of California and admitted to the Bar of this Court. I represent defendant Shane Claridge Kelley, as Executor of the Thomas F. White Estate. Unless otherwise noted, I make this declaration of my own personal knowledge and could testify competently as to matters stated herein. 2) In my view, necessary discovery into an alleged breach of the purported Employment Contract would involve, at a minimum, inquiry into the terms of the EmploymentCwm NA HW Bw HY = DA RF BR FS Contract and whether enforcement is barred by operation of law; (b) whether Plaintiff fulfilled his own obligations under any alleged agreement with White; and (c) what Plaintiff has done to mitigate any damages arising from the alleged breach of the contract by White. Because Plaintiff's complaint does not raise such a claim, Defendant has not undertaken to seek discovery into these matters. 3) Attached hereto as Exhibit A_is a true and correct copy of excerpts of Plaintiff's testimony at his deposition. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on September 26, 2017, at San Francisco, California. Edward W. Swanson Declarant 2 Declaration of Edward W. Swanson in Opposition to Motion for Leave to Amend Kelly v. Kelley, CGC-13-535823EXHIBIT ACERTIFIED COPY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION PATRICK KELLY, Plaintiff, vs. Case No. CGC-13-535823 SHANE CLARIDGE WHITE, as Executor of the Thomas F. White Estate, Defendant. VIDEOTAPED DEPOSITION of PATRICK KELLY April 14, 2017 Reported by: Cherree P. Peterson, CSR No. 11108 421913 BARKLEY Court Reporters ‘barkley.com1] upon Tom's orders. 2 Q. So what I'm trying to get at, is the records 3 that were submitted to Tom's accountant, will that 4 reflect all of the money that was spent or not? 174733 5 A. It will reflect all the money that was spent, 6| yes. 7 Q. Let's talk about your damages. You're claiming 8|/ 325,000 that you say Tom didn't pay you of your bonus 9! for the Cambodian contract; correct? 17:47:45 10 A. That's correct. 11 And you are claiming 158,900 that Tom didn't 12| pay you to fund Logical Reality; is that correct? 13 A. That's correct. 14 And -- 17:48:00 15 A. And I might say that that's based on his -- not 16) the original agreement, but his commitment, the same 17} agreement that -- to delay payment where he had -- where 18| he restated -- where he stated that he would commence 19 funding again on that when he was released from prison. 7419 20) That was part of the incentives that he was giving me to 21} agree to his demand to delay payment. 22 Q. And how do you calculate that figure for 23| Logical Reality? Where do you come up with that figure? 24 A. That's the 192- in the budget less what he 17:48:36 25 paid. 239 (BARKLEY PATRICK KELLY ‘[Gouet Reporters1 Q And is Logical Reality still functioning today? 2 A. No. 3 Q When did it go offline? 4 A. It went -- it went offline I believe roughly a 174851 5| year before Tom terminated me. 6 Q. Before -- 7 A. I was too busy. Maybe more. One or two years 8| before Tom terminated me. I was too busy with his stuff 9) to deal with the website. 17:49:01 10 Q. Before it went offline, did it have a revenue 11 stream? 12 A. No. 13 Q. Did it ever turn a profit? 14 A. No. 47:49:10 15 Q. You are claiming $30,270 in waiting time 16 penalties under the labor code; correct? 17 A. That's correct. 18 Q. And you say you suffered emotional distress, 19| mental pain and suffering; is that correct? 17:49:28 20 A. That's correct. And that's tied to what the -- 21| well, let me just stop there. That's correct. 22 Q. Did you see any medical doctor of any sort in 23] connection with the emotional distress, mental pain and 24 suffering that you experienced as a result of not 174947 25| receiving these payments? 240 BARKL PATRICK KELLY ae1 A. I did not see a doctor. Well, I have seen 2| doctors as to my high blood pressure and -- which you 3| know has some association with that. 4 Q. Do you have any medical opinions supporting the 475012 5 fact that your high blood pressure has some association 6| with not having been paid money in connection with 7| funding Logical Reality and receiving the bonus you 8 claim that you're entitled to under the Cambodian 9 contract? 17:50:23 10 A. No. But I believe there are well-established 11} decisions that -- oh, I'm not going to remember that 12 now. I'm sorry. I can't. There are some decisions 13 that show something to the effect that my having to 14 litigate this and go through what I've gone through is 17:51:05 15 -- is emotionally stressful. 16 Q. So is the claim based on your having to i7| litigate this or is your claim based on the nonpayment? 18| What's your claim based on for the waiting time 19| penalties? 4751:19 20 A. I'm sorry. I can't recall right now what that 21 is. But if I can, I can forward it to you later. 22 Q. Are those all the damages that you're seeking 23 in this case? 24 A. Presently. But this case -- well, no. It's 17514125) not. I had filed a motion for an amended claim to 241 BARKLEY PATRICK KELLY faeele wiped1| submit an amended claim that was denied. That claim had 2| all sorts of damage in there from a conspiracy. As I've 3} mentioned to Britt, my intent is to -- is to -- I'm 4| getting tired -- my intent is to appeal that decision. 176210 5| And I think I stand a fairly good chance to win that 6| appeal based on what happened in the hearing and the 7 judge's order. 8 MR. SWANSON: Okay. Let's just take a brief 9| break if we could, and I think we may be done. Just 17523010} hold on one second. 11 THE VIDEOGRAPHER: Going off the record. The 12 time is 5:52 p.m. 13 (Whereupon the proceedings were concluded at 14 5:52 p.m.) 15 ---000--- 16| // 17\ // 18 I have read the foregoing deposition 19 transcript and by signing hereafter, approve same. 20 21| Dated 22 23 (Signature of Deponent) 24 25 242 BARKLEY PATRICK KELLY Todats Rineteore!24 25 DEPOSITION OFFICER'S CERTIFICATE (Civ. Proc. § 2025.520(e)) STATE OF CALIFORNIA ) COUNTY OF CONTRA COSTA ) I, CHERREE P. PETERSON, CSR #11108, hereby certify: I am a duly qualified Certified Shorthand Reporter, in the State of California, holder of Certificate Number CSR 11108 issued by the Court Reporters Board of California and which is in full force and effect. (Bus. & Prof. § 8016) I am not financially interested in this action and am not a relative or employee of any attorney of the parties, or of any of the parties. (Civ. Proc. § 2025.320-(a) ) I am authorized to administer oaths or affirmations pursuant to California Code of Civil Procedure, Section 2093(b) and prior to being examined, the deponent was first placed under oath or affirmation by me. (Civ. Proc. §§ 2025.320, 2025.540(a)) I am the deposition officer that stenographically recorded the testimony in the foregoing deposition and the foregoing transcript is a true record of the testimony given. (Civ. Proc. § 2025.540(a)) 243 PATRICK KELLYI have not, and shall not, offer or provide any services or products to any party's attorney or third party who is financing all or part of the action without first offering same to all parties or their attorneys attending the deposition and making same available at the same time to all parties or their attorneys. (Civ. Proc. § 2025.320(b)) I shall not provide any service or product consisting of the deposition officer's notations or comments regarding the demeanor of any witness, attorney, or party present at the deposition to any party or any party's attorney or third party who is financing all or part of the action, nor shall I collect any personal identifying information about the witness as a service or product to be provided to any party or third party who is financing all or part of the action. (Civ. Proc. § 2025.320(c)) Dated: April 26, 2017 244 PATRICK KELLY