Preview
1 TIMOTHY P. MURPHY (SBN 120920)
MEGAN M. SYMONDS (SBN 244734)
2 EDRINGTON, SCHIRMER & MURPHY LLP GOV’T CODE §6103
GOV'T
2300 Contra Costa Boulevard, Suite 450
3 Pleasant Hill, CA 94523-3936
Telephone: (925) 827-3300
4 Facsimile:
Facsimile• (925) 827-3320
5 Attorneys for Defendant NAPA COUNTY OFFICE OF EDUCATION
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF NAPA, UNLIMITED JURISDICTION
10
11
CHARLES J. BERRY, an individual, ) CASE NO.: 19CV000733
12 )
Plaintiff, )
13 ) DECLARATION OF MEGAN M.
)DECLARATION
vs.
vs. ) SYMONDS FOR AUTOMATIC THIRTY DAY
)SYMONDS
14 ) EXTENSION OF TIME TO FILE RESPONSE
)EXTENSION
) TO PLAINTIFF'S
)TO PLAINTIFF’S COMPLAINT PURSUANT
15 POPE VALLEY UNION ELEMENTARY ) TO C.C.P. SECTION 430.41(a)(2).
)TO
SCHOOL DISTRICT, NAPA COUNTY )
16 OFFICE OF EDUCATION and DOES 1 to 10, )
inclusive, )
17 ) Complaint Filed: May 15, 2019
)Complaint
Defendants. ) Remittitur Filed: January 12, 2022
)Remittitur
18 ) Third Amended Complaint:
)Third February 14, 2022
)
19
20
21 I, MEGAN M. SYMONDS, declare as follows:
22 1. I am an attorney licensed to practice law in the State of California. I am an
23 associate attorney with the law offices of Edrington, Schirmer and Murphy, LLP., attorneys of
24 record for Defendant NAPA COUNTY OFFICE OF EDUCATION ("NCOE") (“NCOE”) in the above-
25 captioned case. I have personal knowledge of the facts contained in this declaration and if called
26 to testify as a witness, I could and would competently testify thereto.
27 2. On January 12, 2022, the Court of Appeal issued a Remittitur of the case. The
28 Court of Appeal had dismissed eight of the nine causes of action from Plaintiffs Plaintiff’s Second
1
Declaration of Megan M. Symonds for Automatic Thirty Day Extension of Time to File Response to Plaintiff's
Plaintiff’s Complaint
1 Amended Complaint, including the Defamation cause of action. The Court of Appeal issued a
2 Plaintiff’s Third Cause of Action (disparate treatment/ gender discrimination).
Remittitur as to Plaintiff's
3 Mr. Berry was also given leave to amend.
4 3. On February 14, 2022, Mr. Berry filed and served his Third Amended Complaint,
5 which included eight causes of action, including another cause of action for Defamation.
6 4. On February 25, 2022, I emailed, Plaintiff in Pro-Per, Charles Berry and informed
7 him that defendants Pope Valley Union Elementary School District ("Pope (“Pope Valley")
Valley”) and NCOE
8 would need to meet and confer and discuss Plaintiff's
Plaintiff’s Third Amended Complaint. Three dates
9 were offered to discuss the Complaint.
10 5. On March 7, 2022, I participated in a joint conference call with counsel for Pope
11 Valley and plaintiff, Charles Berry. In that discussion, we discussed that each of Mr. Berry's Berry’s
12 causes of action are deficient and are subject to Demurrer. With respect to NCOE, cause of
13 action number three, Defamation, we informed Mr. Berry that the doctrine of Res Judicata
14 precluded his cause of action for Defamation. With respect to the fourth through sixth causes of
15 action (Whistleblower Retaliation, Procedural Due Process, 42 U.S.C. section 1983), we
16 informed Mr. Berry that he failed to state a claim, that his causes of action were not
17 contemplated within his Government Tort Claim and that the Statute of Limitations precluded
18 these causes of action. We also informed Mr. Berry that these facts failed to state a cognizable
19 claim under the theories espoused. The seventh cause of action for Abuse of Process is
20 precluded for the above reasons, as well as the Litigation Privilege.
21 6. During that conference call, both Pope Valley and NCOE informed Mr. Berry that
22 the defendants planned to raise each of these deficiencies on Demurrer. Mr. Berry was provided
23 defendant’s respective positions.
with legal authorities to support the defendant's
24 7. At the conclusion of that call, the parties agreed that they were still meeting and
25 conferring, and Mr. Berry is currently reviewing and considering the points and authorities raised
26 by defendants. Mr. Berry indicated that he would contemplate whether or will amend or
27 withdraw any of the causes of action in his Third Amended Complaint.
28 8. In order to allow the parties adequate time to complete these meet and confer
2
Declaration of Megan M. Symonds for Automatic Thirty Day Extension of Time to File Response to Plaintiff's
Plaintiff’s Complaint
1 efforts to see if demurrers to plaintiff's
plaintiff’s Third Amended Complaint can be avoided, NCOE files
2 this declaration seeking an automatic thirty (30) day extension of time to respond to Plaintiff's Plaintiff’s
3 Third Amended Complaint.
4 I declare under the penalty of perjury under the laws of the State of California that the
5 foregoing is true and correct.
6
DATED: March 11, 2022
7
Megan M. Symonds
8 By _____________________________________
MEGAN M. SYMONDS
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Declaration of Megan M. Symonds for Automatic Thirty Day Extension of Time to File Response to Plaintiff's
Plaintiff’s Complaint
Berry v. Pope Valley Union Elementary, et al., Case No. 19CV000733
PROOF OF SERVICE
1
I, the undersigned, certify and declare as follows: I am employed in the County of Contra
2 Costa, State of California. I am over the age of 18 years and not a party to the within action. My
business address is 2300 Contra Costa Blvd., Suite 450, Pleasant Hill, CA 94523.
3
On March 11, 2022, I served the document(s) entitled:
4
DECLARATION OF MEGAN M. SYMONDS FR AUTOMATIC THIRTY DAY
5 EXTENSION OF TIME TO FILE RESPONSE TO PLAINTIFF’S PLAINTIFF'S COMPLAINT
PURSUANT TO C.C.P. SECTION 430.419A0(2)
6
7 on the interested parties in the above action by placing a true copy thereof enclosed in a sealed
envelope(s), addressed as follows:
8
BY MAIL: I caused such envelope(s) with postage thereon fully prepaid to be placed in
9 the United States mail at Pleasant Hill, California. I am readily familiar with the firm's
practice of collection and processing correspondence for mailing. It is deposited with the
10 U.S. Postal Service on the same day in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if the postal cancellation date or
11 postage meter date is more than one (1) day after the date of deposit for mailing in the
affidavit.
12
BY FACSIMILE: by transmitting via facsimile the document listed above to the
13 facsimile number(s) set forth above, or as stated on the attached service list, on this date
before 5:00 p.m.
14
15 BY PERSONAL SERVICE: by placing a true and correct copy of the document
listed above in a sealed envelope and causing said envelope to be delivered by hand this
16 date to the offices of the addressee.
17 BY E-MAIL: by transmitting a true and correct copy of the document listed above to
18 the e-mail address identified above.
19
Mr. Charles J. Berry Louis A. Leone, Esq.
20 P.O. Box 9714 Kathleen Darmagnac, Esq.
Berkeley, CA 94709 Leone & Alberts
21 Tel: (707) 513-9015 1390 Willow Pass Road, Suite 700
Email: bookman@mcn.org Concord, CA 94520
22 T: (925) 974-8600
F: (925) 974-8601
23 Email: kdarmagnac@leonealberts.com
24 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
25
Executed on March 11, 2022, in Pleasant Hill, California.
26
27 _Dana Moxley_______________________
Dana Moxlev
Dana Moxley
28
1
PROOF OF SERVICE
Preview
1 TIMOTHY P. MURPHY (SBN 120920) MEGAN M. SYMONDS (SBN 244734) 2 EDRINGTON, SCHIRMER & MURPHY LLP GOV’T CODE §6103 GOV'T 2300 Contra Costa Boulevard, Suite 450 3 Pleasant Hill, CA 94523-3936 Telephone: (925) 827-3300 4 Facsimile: Facsimile• (925) 827-3320 5 Attorneys for Defendant NAPA COUNTY OFFICE OF EDUCATION 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF NAPA, UNLIMITED JURISDICTION 10 11 CHARLES J. BERRY, an individual, ) CASE NO.: 19CV000733 12 ) Plaintiff, ) 13 ) DECLARATION OF MEGAN M. )DECLARATION vs. vs. ) SYMONDS FOR AUTOMATIC THIRTY DAY )SYMONDS 14 ) EXTENSION OF TIME TO FILE RESPONSE )EXTENSION ) TO PLAINTIFF'S )TO PLAINTIFF’S COMPLAINT PURSUANT 15 POPE VALLEY UNION ELEMENTARY ) TO C.C.P. SECTION 430.41(a)(2). )TO SCHOOL DISTRICT, NAPA COUNTY ) 16 OFFICE OF EDUCATION and DOES 1 to 10, ) inclusive, ) 17 ) Complaint Filed: May 15, 2019 )Complaint Defendants. ) Remittitur Filed: January 12, 2022 )Remittitur 18 ) Third Amended Complaint: )Third February 14, 2022 ) 19 20 21 I, MEGAN M. SYMONDS, declare as follows: 22 1. I am an attorney licensed to practice law in the State of California. I am an 23 associate attorney with the law offices of Edrington, Schirmer and Murphy, LLP., attorneys of 24 record for Defendant NAPA COUNTY OFFICE OF EDUCATION ("NCOE") (“NCOE”) in the above- 25 captioned case. I have personal knowledge of the facts contained in this declaration and if called 26 to testify as a witness, I could and would competently testify thereto. 27 2. On January 12, 2022, the Court of Appeal issued a Remittitur of the case. The 28 Court of Appeal had dismissed eight of the nine causes of action from Plaintiffs Plaintiff’s Second 1 Declaration of Megan M. Symonds for Automatic Thirty Day Extension of Time to File Response to Plaintiff's Plaintiff’s Complaint 1 Amended Complaint, including the Defamation cause of action. The Court of Appeal issued a 2 Plaintiff’s Third Cause of Action (disparate treatment/ gender discrimination). Remittitur as to Plaintiff's 3 Mr. Berry was also given leave to amend. 4 3. On February 14, 2022, Mr. Berry filed and served his Third Amended Complaint, 5 which included eight causes of action, including another cause of action for Defamation. 6 4. On February 25, 2022, I emailed, Plaintiff in Pro-Per, Charles Berry and informed 7 him that defendants Pope Valley Union Elementary School District ("Pope (“Pope Valley") Valley”) and NCOE 8 would need to meet and confer and discuss Plaintiff's Plaintiff’s Third Amended Complaint. Three dates 9 were offered to discuss the Complaint. 10 5. On March 7, 2022, I participated in a joint conference call with counsel for Pope 11 Valley and plaintiff, Charles Berry. In that discussion, we discussed that each of Mr. Berry's Berry’s 12 causes of action are deficient and are subject to Demurrer. With respect to NCOE, cause of 13 action number three, Defamation, we informed Mr. Berry that the doctrine of Res Judicata 14 precluded his cause of action for Defamation. With respect to the fourth through sixth causes of 15 action (Whistleblower Retaliation, Procedural Due Process, 42 U.S.C. section 1983), we 16 informed Mr. Berry that he failed to state a claim, that his causes of action were not 17 contemplated within his Government Tort Claim and that the Statute of Limitations precluded 18 these causes of action. We also informed Mr. Berry that these facts failed to state a cognizable 19 claim under the theories espoused. The seventh cause of action for Abuse of Process is 20 precluded for the above reasons, as well as the Litigation Privilege. 21 6. During that conference call, both Pope Valley and NCOE informed Mr. Berry that 22 the defendants planned to raise each of these deficiencies on Demurrer. Mr. Berry was provided 23 defendant’s respective positions. with legal authorities to support the defendant's 24 7. At the conclusion of that call, the parties agreed that they were still meeting and 25 conferring, and Mr. Berry is currently reviewing and considering the points and authorities raised 26 by defendants. Mr. Berry indicated that he would contemplate whether or will amend or 27 withdraw any of the causes of action in his Third Amended Complaint. 28 8. In order to allow the parties adequate time to complete these meet and confer 2 Declaration of Megan M. Symonds for Automatic Thirty Day Extension of Time to File Response to Plaintiff's Plaintiff’s Complaint 1 efforts to see if demurrers to plaintiff's plaintiff’s Third Amended Complaint can be avoided, NCOE files 2 this declaration seeking an automatic thirty (30) day extension of time to respond to Plaintiff's Plaintiff’s 3 Third Amended Complaint. 4 I declare under the penalty of perjury under the laws of the State of California that the 5 foregoing is true and correct. 6 DATED: March 11, 2022 7 Megan M. Symonds 8 By _____________________________________ MEGAN M. SYMONDS 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Declaration of Megan M. Symonds for Automatic Thirty Day Extension of Time to File Response to Plaintiff's Plaintiff’s Complaint Berry v. Pope Valley Union Elementary, et al., Case No. 19CV000733 PROOF OF SERVICE 1 I, the undersigned, certify and declare as follows: I am employed in the County of Contra 2 Costa, State of California. I am over the age of 18 years and not a party to the within action. My business address is 2300 Contra Costa Blvd., Suite 450, Pleasant Hill, CA 94523. 3 On March 11, 2022, I served the document(s) entitled: 4 DECLARATION OF MEGAN M. SYMONDS FR AUTOMATIC THIRTY DAY 5 EXTENSION OF TIME TO FILE RESPONSE TO PLAINTIFF’S PLAINTIFF'S COMPLAINT PURSUANT TO C.C.P. SECTION 430.419A0(2) 6 7 on the interested parties in the above action by placing a true copy thereof enclosed in a sealed envelope(s), addressed as follows: 8 BY MAIL: I caused such envelope(s) with postage thereon fully prepaid to be placed in 9 the United States mail at Pleasant Hill, California. I am readily familiar with the firm's practice of collection and processing correspondence for mailing. It is deposited with the 10 U.S. Postal Service on the same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or 11 postage meter date is more than one (1) day after the date of deposit for mailing in the affidavit. 12 BY FACSIMILE: by transmitting via facsimile the document listed above to the 13 facsimile number(s) set forth above, or as stated on the attached service list, on this date before 5:00 p.m. 14 15 BY PERSONAL SERVICE: by placing a true and correct copy of the document listed above in a sealed envelope and causing said envelope to be delivered by hand this 16 date to the offices of the addressee. 17 BY E-MAIL: by transmitting a true and correct copy of the document listed above to 18 the e-mail address identified above. 19 Mr. Charles J. Berry Louis A. Leone, Esq. 20 P.O. Box 9714 Kathleen Darmagnac, Esq. Berkeley, CA 94709 Leone & Alberts 21 Tel: (707) 513-9015 1390 Willow Pass Road, Suite 700 Email: bookman@mcn.org Concord, CA 94520 22 T: (925) 974-8600 F: (925) 974-8601 23 Email: kdarmagnac@leonealberts.com 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 25 Executed on March 11, 2022, in Pleasant Hill, California. 26 27 _Dana Moxley_______________________ Dana Moxlev Dana Moxley 28 1 PROOF OF SERVICE