ricardo graham's motion to strike

8/3/2019 Ricardo Graham's Motion to Strike

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JON DAGGETT, ESQ.lSBN: 227375DEAN SCHIRMER, ESQ.lSBN: 146407

2 HiROSHIMA, JACOBS, ROTH and LEWIS1420 River Park Drive, Second Floor

3 Sacramento, CA 95815Telephone: (916) 923-2223

4 Facsimile: (916) 929-7335

5 Attorneys for Defendant, RICARDO GRAHAM

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l f~6~¥~~R\ \ f ILfR~

S E P 2 2 2 0 1 1

M. Gibson

SUPERIOR COURT OF CALIFORNIA

COUNTY OF RIVERSIDE

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11 JEFFRY M. KAATZ, JAMES W .

BEACH, and GARY L. BRADLEY,

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13 Plaintiff,

14 v.

Case No.: RIC 1112557

DEFENDANT RICARDO GRAHAM'SNOTICE OF MOTION AND MOTION OFTO STRIKE PORTIONS OFPLAINTIFFS' COMPLAINT

D.ate: ~ · . lsillTIme: \ ra>» .nll.Dept;" ~VU(A;

15 RICARDO GRAHAM; PACIFIC UNION

16 CONFERENCE OF SEVENTH-DAY

ADVENTISTS, a not-for-profit

17 corporation; DANIEL R. JACKSON;

LARRY BLACKMER; NORTH18 AMERICAN DIVISION CORPORATION

19 FO SEVENTH-DAY ADVENTISTS, a

not-for-profit corporation; and LA20 SIERRA UNIVERSITY, a not-for profit

corporation; and DOES 1-100,

..•• ~ •• n_' __

22 Defendants.

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24 To JEFFRY M. KAATZ, JAMES W. BEACH, and GARY L. BRADLEY, and their

25 attorney of record. d .26 NOTICE IS HEREBY GIVEN that on the _ 3 ! day of

h [ w : u r y u b c/G011, at

27 a.m. or as soon thereafter as the matter can be heard in Departmentaf

28 the above-entitled court, located at 4050 Main Street, Riverside, CA 92501, defendant

DEFENDANT RICARDO GRAHAM'S NOTICE OF MOTION AND MOTION OF TO STRIKE PORTIONS

OF PLAINTIFFS' COMPLAINT -1-



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RICARDO GRAHAM will move for an order striking fiduciary duty allegations from the

2 plaintiffs' Complaint on the grounds set forth below. Specifically, the allegations in

3 paragraphs 6,8,59,61,62,111-117,161,162,168,169 and 193-199. Removal of said

4 allegations would also require the dismissal of the sixth, seventh and twelfth causes of

5 action of Plaintiffs' Complaint.

6 Defendant files this Motion to Strike on the following grounds:

1. As to the First, Second, Third, Fourth, Fifth, Ninth, Tenth, Eleventh,

8 Twelfth and Thirteenth causes of action, the Defendant Ricardo Graham cannot be

9 personally held liable for monetary damages to the plaintiff caused by his actions as

10 chairman of the board of trustees at La Sierra University pursuant to corp. Code §9247.

11 The Motion is based upon this Notice of Motion and Motion, the memorandum of

12 points and authorities, all pleadings and papers on file herein, all matters of which this

13 court must or may take judicial notice, and upon such other evidence and argument as

14 the court deems just and proper.

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16 Dated: September 22,2011

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N DAGGETT ISBN 227375

DEAN SCHIRMER ISBN 146409HIROSHIMA, JACOBS, ROTH and LEWIS

1420 River Park Drive, Second Floor

Sacramento, California 95815

Telephone: (916) 923-2223

Facsimile: (916) 929-7335

Attorneys for Defendants, RICARDOGRAHAM

DEFENDANT RICARDO GRAHAM'S NOTICE OF MOTION AND MOTION OF TO STRIKE PORTIONS

OF PLAINTIFFS' COMPLAINT -2-



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Defendants.

JON DAGGElT, ESQ.JSBN: 227375DEAN SCHIRMER, ESQ.lSBN: 146407

2 HIROSHIMA, JACOBS, ROTH and LEWIS1420 River Park Drive, Second Floor

3 Sacramento, CA 95815Telephone: (916) 923-2223

4 Facsimile: (916) 929-7335

5 Attorneys for Defendant, RICARDO GRAHAM

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I F ' n [b ~. i i 5 JSUPERIORCOURTo~1w.rlj:n~

c OU NT Y O F R N l l H ! ! i ~ E

S E P 2 2 2 0 1 1

M. Gibson


COUNTY OF RIVERSIDE

I.

DEFENDANT RICARDO GRAHAM CANNOT BE PERSONALLY HELD LIABLE FOR

MONETARY DAMAGES TO THE PLAINTIFF CAUSED BY HIS ACTIONS AS

CHAIRMAN OF THE BOARD OF TRUSTEES AT LA SIERRA UNIVERSITY

PURSUANT TO CORP. COpE §9247.

The specific provisions relating to indemnification of volunteer directors and officers

JEFFRY M. KAATZ, JAMES W.

BEACH, and GARY L. BRADLEY,

Plaintiff,

v .


CONFERENCE OF SEVENTH-DAY

16 ADVENTISTS, a not-far-profit

corporation; DANIEL R. JACKSON;

17 LARRY BLACKMER; NORTH

18 AMERICAN DIVISION CORPORATION

FO SEVENTH-DAY ADVENTISTS, a

19 not-for-profit corporation; and LA

20 SIERRA UNIVERSITY, a not-for profit


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MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEFENDANT RICARDO GRAHAM'SMOTION TO STRIKE PORTIONS OFPLAINTIFFS' COMPLAINT

D!ite: ~I~~.HTime: \ {olOL .( VI . 'Dept: ~/uv

;-:p ,;::-,-..RV F '·~ ... c •.uU .

A XCRe 2005

28 of nonprofit religious corporations are set forth in Corp. Code §9247, which states:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT RICARDO

GRAHAM'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT -1-



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§9247. Personal liability of volunteer director or volunteer executive officer

(a) There shall be no personal liability for monetary damages to a third party on the

part of a volunteer director or volunteer executive officer of a nonprofit corporation

subject to this part, caused by the director's or officer's negligent act or omission in

the performance of that person's duties as a director or officer, if all of the followingconditions are met:

(1) The act or omission was within the scope of the director's or executive

officer's duties.

(2) The act or omission was performed in good faith.

(3) The act or omission was not reckless, wanton, intentional, or grossly

negligent.

(4) Damages caused by the act or omission are covered pursuant to a

liability insurance policy issued to the corporation, either in the form of a general

liability policy or a director's or officer's liability policy, or personally to the director

or executive officer. In the event that the damages are not covered by a liability

insurance policy, the volunteer director or volunteer executive officer shall not bepersonally liable for the damages if the board of directors of the corporation and

the person had made all reasonable efforts in good faith to obtain available liability

insurance.

(b) "Volunteer" means the rendering of services without compensation.

"Compensation" means remuneration whether by way of salary, fee, or other

consideration for services rendered. However, the payment of per diem, mileage,

or other reimbursement expenses to a director or executive officer does not affect

that person's status as a volunteer within the meaning of this section.

(c) "Executive officer" means the president, vice president, secretary, or treasurerof a corporation, or other individual serving in like capacity, who assists in

establishing the policy of the corporation.

(d) Nothing in this section shall limit the liability of the corporation for any damages

caused by acts or omissions of the volunteer director or volunteer executive officer.

(e) This section does not eliminate or limit the liability of a director or officer for any

of the following:

(1) As provided in Section 9243 or 9245.

(2) In any action or proceeding brought by the Attorney General.

(f ) Nothing in this section creates a duty of care or basis of liability for damage or

injury caused by the acts or omissions of a director or officer.

(g) This section is only applicable to causes of action based upon acts or

omissions occurring on or after January 1, 1988.





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As can be seen above, volunteer directors and volunteer executive officers of

2 nonprofit corporations subject to the Nonprofit Religious Corporation Law (Corp. Code §

3 9110 et seq.) are not personally liable for monetary damages to third parties caused by

4 the director's or officer's negligent act or omission in the performance of his or her duties

5 as a director or officer committed after January 1, 1988, if all of the following are true:

The act or omission was within the scope of the director's or officer's

duties.

The act or omission was performed in good faith.

The act or omission was not reckless, wanton, intentional, or grossly

negligent.

Damages caused by the act or omission are covered by a liability

insurance policy issued to the corporation in the form of a general

liability policy or a director's or officer's liability policy, or issued to the

director or officer personally.

12 In this matter, there are no allegations that the defendant Ricardo Graham acted

13 outside the scope of his duties. While the plaintiffs do argue that the actions taken were

14 not within the procedures outlined in various church handbooks, they do not state that the

15 actions taken were not of the nature usually handled by the Chair of the Board of

16 Trustees. The conversations with other Church Officials, including Jackson, Blackmer

17 and the attorneys for the Church was well within the normal duties of a Chair of the Board

18 of Trustees, especially when the subject matter pertains to the fitness of the employees,

19 faculty and officers of a subordinate organization of the church. Furthermore, the

20 conversations with the plaintiffs regarding the information contained on the recording and

21 the discussion regarding their resignations were well within the duties of the Chair of the

22 Board of Trustees. It should also be noted that all of the various handbooks and

23 documents referenced by the Plaintiffs do not preclude the Chair of the Board of Trustees

24 discussing employment issues with LSU's faculty or officers, nor accepting their

25 resignations. It is also important to note that Defendant, Ricardo Graham did not

26 terminate the Plaintiffs. They each resigned on their own and only later argued that they

27 were wrongfully terminated.

28 Additionally, nothing in the Complaint states that the meetings with the Plaintiff were

MEMORANDUM OF POINTS AND AUTHORiTIES IN SUPPORT OF DEFENDANT RICARDO




not done in good faith. As the Chair of the Board of Trustees, it is evident that defendant

2 had a right and was required to address the statements made on the recording which had

3 been disseminated to numerous parties other than the defendants in this matter. A fact

4 not mentioned in Plaintiffs' Complaint. While the Plaintiffs argue that some of the

5 statements were misrepresented to them during their meeting with defendant Ricardo

6 Graham, that argument is without merit. They very carefully ignore the fact that 'THEY

7 WERE PRESENT DURING THE CONVERSATION". If anyone is aware of the

8 statements made during that get-together it is the Plaintiffs. Their feigned ignorance of a

9 conversation less than two months previous in which they admit they "were heavily

10 emotionally charged" is difficult to believe. The allegations regarding defendant Graham's

11 coercive treatment is merely an attempt by the Plaintiffs to shift the blame for their

12 inappropriate and outlandish behavior which were in clear violation of the tenets of the

13 Seventh-day Adventist Church and LSU.

14 The actions in this matter were not reckless, wanton, intentional, or grossly

15 negligent. While Plaintiffs' Complaint attempts to paint as dire a picture as possible

16 regarding their termination of employment or resignations, the court must look at the

17 actual allegations of the Complaint and the conduct that underlies the Plaintiffs' causes of

18 action. In this matter, the plaintiffs were simply confronted about the statements they

19 made on the recording. Having been present during the recording, the Plaintiffs were well

20 aware of the contents of the recording and their conduct during that conversation. The

21 decisions they made when they were asked to resign was their decision and not that of

22 the defendant Ricardo Graham. As stated in the Complaint, defendant Graham was not

23 going to terminate them if they failed to resign, he simply stated that it was to be brought

24 to the Board of Trustees, who would then make their decision.

25 Lastly, the entity for which the defendant, Ricardo Graham volunteered his services

26 for does have Liability Insurance.

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PHIL HIROSHIMA, ESQ./SBN: 50758DEAN SCHIRMER, ESQ.lSBN: 146407

2 JON DAGGETT, ESQ.lSBN: 227375HIROSHIMA, JACOBS, ROTH and LEWIS

3 1420 River Park Drive, Second FloorSacramento, CA 95815

4 Telephone: (916) 923-2223 .Facsimile: (916) 929-7335

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11 JEFFRY M. K A A T Z . JAMES W.

BEACH, and GARY L. BRADLEY,12

Attorneys for Defendant, RICARDO GRAHAM

S E P 2 2 2 0 1 1

M. Gibson


COUNTY OF RIVERSIDE

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24 I, DEAN SCHIRMER declare:

25 1. J am a member of the law firm of Hiroshima, Jacobs, Roth and Lewis. I am

26 an attorney at law duly licensed to practice in all courts in the State of California, as a

27 member of the State Bar of California, and am sufficiently familiar with the me and the

28 matters stated herein.

13 Plaintiff,

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16 CONFERENCE OF SEVENTH-DAYADVENTISTS, a not-for-profit

17 corporation; DANIEL R . JACKSON;

LARRY BLACKMER; NORTH18 AMERICAN DIVISION CORPORATION

19 FO SEVENTH-DAY ADVENTISTS, anot-far-profit corporation; and LA

20 SIERRA UNIVERSITY, a not-for profit


22 Defendants.


DECLARATION OF DEAN SCHIRMERIN SUPPORT OF DEFENDANTRICARDO GRAHAM'S MOTION TOSTRIKE PORTIONS OF PLAINTIFFS'COMPLAINT

~ r r : . ~ : :1I9~~Dept: v J 2 :

DECLARATION OF DEAN SCHIRMER IN SUPPORT OF DEFENDANT RICARDO GRAHAM'S

MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT -1-



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DECLARATION OF DEAN SCHIRMER IN SUPPORT OF DEFENDANT RICARDO GRAHAM'S

MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT -2-

2. Initially, counsel for Defendant Ricardo Graham did not attempt to meet and

2 confer regarding this instant motion to strike as it concerns the same causes of action and

3 arguments as the Motion to Strike filed by co-defendant La Sierra University.

3. Plaintiffs failure to amend their Complaint as to the co-defendants La Sierra

5 University, Pacific Union Conference of Seventh-day Adventists and North American

6 Division of Seventh-day Adventists demurrers and motion to strike shows an

7 unwillingness on the part of the plaintiffs to acknowledge the defects in their Complaint

8 and the futile nature of the meet and confer process.

4. Additionally, counsel for defendant, Ricardo Graham was only recently

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retained and have only just been able to review the Complaint fully and speak with our

client in detail about the allegations. The shortened time period to respond has caused

this response to be filed on very short notice and has made it difficult for the parties to

have a meaningful meet and confer discussion regarding the plaintiff's concerns.

I declare under the penalty of perjury that the forgoing is true and correct and that

this declaration was executed on September 22,2011, at Sacramento, California.

7DEAN SCHIRMER

ricardo graham's motion to strike

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