IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
Daniel A. , an individual,
Case No. 1305-06167
Plaintiff, ) NOTICE OF MOTION
) AND MOTION
vs. ) FOR SANCTIONS
), AGAINST LINDA ABUNDIS
Tabitha J” of “Eugene Oregon, ) AND ATTORNEY LUKE W.
Yelp, Inc. ), REESE
NOTICE IS HEREBY GIVEN that at a time and place set by the Court, plaintiff Daniel A. , Esq., shall move this Court and hereby moves this Court that defendant Linda Abundis and her attorney Luke W. Reese pay reasonable attorney fees of $5500 for making a frivolous Summary Judgment motion, with no supporting evidence, disguised as a discovery motion, entering into an agreement so that his faulty motions would not be read and then submitted a proposed Order to the Court that did not reflect the agreement between plaintiff and defendants’ counsel..
This motion is supported by this Notice, the Points and Authorities and the declaration and other evidence submitted.
Daniel A. , Esq.
DECLARATION OF DANIEL A. , ESQ.
Declaration of plaintiff in support of motion for sanctions
Against Luke Reese for perpetrating a fraud upon the Court
1. I am a lawyer, having been admitted to the bar in December 1984. I practice before the US Immigration Court, the US Social Security Court and all Courts of the State of California, the US Supreme Court, and the 9th Circuit of the United States. I regularly bill at $350 an hour. I estimate that I have spent 18 hours in opposing the various frivolous actions of Luke Reese and Linda Abundis.
2. The stipulation does not give up plaintiffs rights, nor make plaintiff “prove” his case before time of trial or summary judgment motion.
3. Defendants’ counsel Luke Reese put these fantasies into the proposed Order.
4. I have warned Reese that his frivolous and unprofessional conduct will cause me to have him act in conformity with the law and honesty tradition found among lawyers. He sent me the following email and I replied.
(Plaintiff’s reply to attorney Luke Reese and Linda Abundis)
I withdraw the sanction motion but will bring it back if you do something ridiculous (again).
To: Daniel <email@example.com>
Cc: Tonya M. Grass <firstname.lastname@example.org>; James M. Healy <email@example.com>
Sent: Wednesday, June 5, 2013 2:24 PM
Subject: v. Yelp, Inc. et al Case No. 1305-06167
Per our telephone conversation today, I believe that we have reached an agreement that will avoid this afternoon’s hearing. To confirm, you will withdraw all deposition notices and other discovery requests that have been sent to Linda and/or Rich Abundis. Linda and Rich Abundis will not object to you filing a second amended complaint to name one or both of them as defendants, so long as no discovery requests are issued to them until they have an opportunity to file a motion to dismiss the anticipated second amended complaint and the court rules on such motion. Finally, you will withdraw the motion for sanctions that has been filed against myself and Ms. Abundis.
I will communicate with the court that the hearing may be canceled and submit the two attached orders, which I believe reflect this agreement. Please review the proposed orders and confirm via email that I may send them to Judge Ryan.
Luke Reese firstname.lastname@example.org
5. Previously, having to appear for the ex parte motion for protective motion to shorten time, to appear on this summary judgment motion by defendant Linda Abundis and to research and prepare documents for the Court has taken me 10 hours. Therefore, Linda Abundis and her counsel, an officer of the Court, Luke W. Reese should compensate me $3500 for their frivolous actions before the Order based on Reese’s fantasy and not upon a stipulation of the parties.
6. Reese and Abundis have made a summary judgment motion stating that Abundis is “not” a party to this lawsuit (even though named in the 1st Amended Complaint) and therefore, magically, and without any authority, the Court should “protect” Abundis from filing an answer (see Letter from attorney Reese) or respond to any discovery whatsoever.
7. As part of this ingenious strategy, responding parties come into court and seek a discovery protective order. How does this work?
a. Defendant is served,
b. Defendant says she is not the person who is the tortfeasor,
c. The Court says “OK” based on your say-so, I’ll kill this complaint.”
5. Regardless of what defendant and counsel call this motion, it is a Summary Judgment motion. As such, it has no support other than defendant’s statement that “you’ve got the wrong man!”.
6. Furthermore, it fails as a summary judgment motion because there is a dispute over the facts. Defendant says “I didn’t do it.” Plaintiff says, “yes you did and here is all the evidence that shows you did it. (See Exhibit of Knowledge that only defendant Linda Abundis has below).
7. I have tried to meet and confer with attorney Reese but I fear he is making these motions only to collect the attorney fee from Abundis or the insurance company financers. Here are the mails I have sent him:
To: James M. Healy <email@example.com>
Sent: Thursday, May 30, 2013 3:09 PM
Subject: Re: v. Tabitha J., et al; Mult Co. Case No. 1305-06167 / GHR No. 80594030
12. This is to give you Notice that I shall be seeking sanctions/attorney fees for your making of a summary judgment motion by another name. For today's waste and the upcoming waste I believe that ten hours at my usual billing rate of $350 or $3500 should be ordered paid to me by you and Abundis.
13. Even though you are an officer of the court, you will not stipulate to let me take Linda Abundis' deposition either as a witness or a party.[Because the defendant insists that you do these frivolous motions] Either way, her deposition shall be taken.
14. I was willing to stipulate that the admissions would not be deemed admitted until after the deposition, in case Linda Abundis convinces me that she is not the tortfeasor. You refused that stipulation stating, "my client demands that I do this." [Such a stipulation would have prevented the misuse of the Court’s time for two hearings but would not permit Mr. Reese from billing out his hours]
15. Again, it is YOU who is the officer of the court and charged with not wasting judicial resources by 1. Stipulating rather than taking up court time and 2. Not making wild and unsupported motions, such as your Summary Judgment Motion before your client as filed an answer. As I told you in settlement REDACTED SETTLEMENT OFFER XXXXXX XXXXXX XXXXX XXXXX. This offer is good only until the end of business today and then it shall not be repeated.
16. It would appear to the Court that you are merely doing this to gain the attorney fees as no reasonable lawyer would make, or has made, the argument you make.
17. I did tell you, "why not go to the DA's office and see how they dismiss defendants when the defendant says 'you got the wrong man.'"
18. I also drafted a summary of the evidence so far that shows by clear and convincing evidence that Linda Abundis is the tortfeasor. (In a civil action merely a preponderance of evidence is required). I gave this summary to Linda Abundis and her attorney:
19. Summary of evidence that will be presented to the Court in opposition to Summary Judgment Motion/protective order and motion for Sanctions against defendant and defendant's counsel. Supplied to defendant's counsel on 5.30.2013
only Linda Abundis knows in defamation publication
Therefore it is more likely than not that Linda Abundis is the tortfeasor
23. LINDA ABUNDIS:…when the reservations were being made; we asked to do a tour the weekend to come and he replied, "well I'm Texas." Not knowing that he was the soul employee, we asked if that means we can't book the tour and he replied, "I just told you that I'm in Texas."
25. Analysis: Linda Abundis and no other person telephoned me when I was in Texas. I asked her afterwards if it was she who wrote the defamation and she admitted that she had.
27. LINDA ABUNDIS There was another couple on the bus, when I asked if they knew him they said no; it turns out that one of them went to high school with him.
29. Analysis: The other couple on the bus were my law partner and an office manager and defendant Linda’s son Rich. I discussed a case and motions and a motion for reconsideration and appeal with my law partner. Rich Abundis, who is a probation officer said “I gather you two are lawyers.” Only Linda Abundis says that we are “high school” chums (not true). She did not hear us tell Rich Abundis that we were law partners and that was how we know each other. Only Linda had that false assumption and she stated it in the defamation.
31. LINDA ABUNDIS (We) finally find the house; he's unsure which one it was, so I find a pic using .
33. Analysis: Linda Abundis (the “I” in the defamation) stuck her telephone into my face and no other person.
LINDA ABUNDIS The lunch place, The Slide Inn, was great. . .and he took us there because he gets a cut of the profits.
The only people I took to the Slide Inn was Linda and Rich. Therefore,
either Linda or Rich or both wrote and published the defamation. If it was
Rich, then the deposition of Linda will establish that and therefore is
necessary for proper discovery in this lawsuit.
38. LINDA ABUNDIS I couldn't get off the bus fast enough!
Analysis: When the van returned to her car, Linda Abundis quickly exited
the van while Rich stayed behind and asked about where the photographs would be
on the trip.
41. Therefore, by a preponderance of the evidence, it was Linda Abundis who defamed me and intentionally interfered with my business by urging other people to breach their contracts with me.
42. Again, defendant’s summary judgment motion fails as the facts are in dispute.
43. Reese and Abundis bottom their litigation tactic by stating that having Abundis deposition taken as a party (or even under SDT as a witness) would be “an annoyance, undue burden and would result in significant undue expense.” All of this boiler plate language is false.
44. But, if this were true we are left to wonder what “undue burden it would be for someone who travels to Eugene for lunch from McMinnville (Abundis also attacked a restaurant in Eugene and refers to herself as Tabitha J of EUGENE OREGON) and is employed in Salem.
45. The travel time to voluntarily visit with me for the tour in Tigard IS THE SAME 28.66 miles.
46. I need only talk to her for 90 minutes or so for the deposition but she voluntarily expended admittedly took up 4 to 5 hours to meet with me for the exact same distance.
47. The travel time from her home in McMinnville to her employment in Salem is 26.65 miles.
48. The travel time to her favorite place of Eugene from her home in McMinnville is 92.11 miles. Therefore, the naked assertion that it is an undue burden is another bald falsity.
49. The same is true of her “expense”. She expends far more in her travels for recreation than doing her duty as a citizen to give testimony or defend herself in a civil action. The cost of travel to the deposition is the same cost for her daily travel to work: $8.14
50. There might be a “custom” in Salem, where attorney Reese practices that depositions take place only in rich paneled law office conference rooms but I have heard no lawyer say such a thing. Indeed, a search of the ORCP no such requirement, only that the deposition shall be taken “Within this state,” or outside the state.
51. I have taken depositions inside Police squad rooms, inside migrant farm worker quarters, jail cells, aside paraplegics in their hospital beds and witness’ homes. All these other attorneys who were also there with me must not know of this “Custom” that Reese pushes onto the Court. This is another clear example of his frivolous conduct.
52. As for my office; it has a separate entrance and separate in all other ways from any living quarters shall serve the purpose of convenience, be close to the van of which she discussed in her review for identification and evidence and my office has plenty of easy parking so that deponent can leave her car and be at her seat in less than 40 seconds.
53. I have found no cases where a lawyer sends another lawyer a letter stating that “you’ve got the wrong person so I’m not going to participate by filing an answer, etc.”
54. Of course Linda Abundis’ testimony is relevant and will lead to relevant evidence. She stated several defamatory things that are completely false. I need to find out the basis for her statements as truth is a defense to defamation. If something she said is actually true where I have probable cause to believe it is false then the deposition may cause me to simply dismiss her from the lawsuit that very day.
55. Furthermore, (even though all evidence points to Linda Abundis) as the only other person who could have made the defamation and committed the other torts was Rich Abundis, then asking for facts from Linda will lead me to the true tortfeasor (if in the unlikely event Linda Abundis is not the tortfeasor).
56. I’ve been practicing law for 30 years and have never seen such a bold attempt to pervert the discovery statutes. She is a party because I have probable cause to believe she is the tortfeasor. She is a witness even if she (in the unlikely event) that she is not the tortfeasor as her testimony will lead me to the other tortfeasor or substitute tortfeasor.
57. I have found no cases where a lawyer makes a summary judgment motion, (calls it a discovery motion) but where the facts are so solidly in dispute.
58. As such, no reasonably attorney would make such a motion.
I HEREBY DECLARE THAT THE ABOVE STATEMENT IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF, AND THAT I UNDERSTAND IT IS MADE FOR USE AS EVIDENCE IN COURT AND IS SUBJECT TO THE PENALTY FOR PERJURY.
POINTS AND AUTHORITIES
A MOTION TO DISMISS OR DISABLE A LAWSUIT
IS A SUMMARY JUDGMENT MOTION
AND NOT A MOTION TO NOT FILE AN ANSWER
AND NOT RESPOND TO DISCOVERY
Rule 47 C
The adverse party shall have 20 days in which to serve and file opposing affidavits or declarations and supporting documents.
The court shall grant the motion if the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law. No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.
SIGNING OF PLEADINGS, MOTIONS AND OTHER PAPERS; SANCTIONS
A Signing by party or attorney; certificate. Every pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record who is an active member of the Oregon State Bar. A party who is not represented by an attorney shall sign the pleading, motion or other document and state the address of the party. Pleadings need not be verified or accompanied by affidavit or declaration.
B Pleadings, motions and other papers not signed. If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.
C Certifications to court.
C(1) An attorney or party who signs, files or otherwise submits an argument in support of a pleading, motion or other document makes the certifications to the court identified in subsections (2) to (5) of this section, and further certifies that the certifications are based on the person's reasonable knowledge, information and belief, formed after the making of such inquiry as is reasonable under the circumstances.
C(2) A party or attorney certifies that the pleading, motion or other document is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
C(3) An attorney certifies that the claims, defenses, and other legal positions taken in the pleading, motion or other document are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law.
C(4) A party or attorney certifies that the allegations and other factual assertions in the pleading, motion or other document are supported by evidence. Any allegation or other factual assertion that the party or attorney does not wish to certify to be supported by evidence must be specifically identified. The attorney or party certifies that the attorney or party reasonably believes that an allegation or other factual assertion so identified will be supported by evidence after further investigation and discovery.
C(5) The party or attorney certifies that any denials of factual assertion are supported by evidence. Any denial of factual assertion that the party or attorney does not wish to certify to be supported by evidence must be specifically identified. The attorney or party certifies that the attorney or party believes that a denial of a factual assertion so identified is reasonably based on a lack of information or belief.
D(1) The court may impose sanctions against a person or party who is found to have made a false certification under section C of this rule, or who is found to be responsible for a false certification under section C of this rule. A sanction may be imposed under this section only after notice and an opportunity to be heard are provided to the party or attorney. A law firm is jointly liable for any sanction imposed against a partner, associate or employee of the firm, unless the court determines that joint liability would be unjust under the circumstances.
D(2) Sanctions may be imposed under this section upon motion of a party or upon the court's own motion. If the court seeks to impose sanctions on its own motion, the court shall direct the party or attorney to appear before the court and show cause why the sanctions should not be imposed. The court may not issue an order to appear and show cause under this subsection at any time after the filing of a voluntary dismissal, compromise or settlement of the action with respect to the party or attorney against whom sanctions are sought to be imposed.
D(3) A motion by a party to the proceeding for imposition of sanctions under this section must be made separately from other motions and pleadings, and must describe with specificity the alleged false certification. A motion for imposition of sanctions based on a false certification under subsection C(4) of this rule may not be filed until 120 days after the filing of a complaint if the alleged false certification is an allegation or other factual assertion in a complaint filed within 60 days of the running of the statute of limitations for a claim made in the complaint. Sanctions may not be imposed against a party until at least 21 days after the party is served with the motion in the manner provided by Rule 9. Notwithstanding any other provision of this section, the court may not impose sanctions against a party if, within 21 days after the motion is served on the party, the party amends or otherwise withdraws the pleading, motion, document or argument in a manner that corrects the false certification specified in the motion. If the party does not amend or otherwise withdraw the pleading, motion, document or argument but thereafter prevails on the motion, the court may order the moving party to pay to the prevailing party reasonable attorney fees incurred by the prevailing party by reason of the motion for sanctions.
D(4) Sanctions under this section must be limited to amounts sufficient to reimburse the moving party for attorney fees and other expenses incurred by reason of the false certification, including reasonable attorney fees and expenses incurred by reason of the motion for sanctions, and upon clear and convincing evidence of wanton misconduct amounts sufficient to deter future false certification by the party or attorney and by other parties and attorneys. The sanction may include monetary penalties payable to the court. The sanction must include an order requiring payment of reasonable attorney fees and expenses incurred by the moving party by reason of the false certification.
D(5) An order imposing sanctions under this section must specifically describe the false certification and the grounds for determining that the certification was false. The order must explain the grounds for the imposition of the specific sanction that is ordered.
I swear under penalty of perjury that interested parties have been served with this motion by US Mail, fully prepaid on June 13, 2013 in Tigard Oregon D
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
Daniel A. , an individual)
Case No. 1305-06167
Plaintiff, ) Notice of Motion and
) Motion for Summary
vs. ) Judgment or
), Summary Adjudication
Tabitha J” of “Eugene Oregon, ) of facts, Points and
Yelp, Inc. ), Authorities, Supporting
Notice is hereby given that at a time and place set by the Court, Plaintiff Daniel A. , an individual, will move this Court and hereby moves this Court for a Summary Judgment against defendant Tabitha J, of Eugene Oregon also known as Linda Abundis. Furthermore, if the Court does not grant the Summary Judgment Motion, plaintiff moves the Court for a Summary Adjudication of Facts.
Plaintiff requests oral argument on this motion, estimating 30 minutes.
Plaintiff made a good faith effort to confer with defendant concerning the issues raised herein.
There are no triable issues of fact and plaintiff will prevail as a matter of law. Defendant cannot meet its burden under Rule 47.
Dated: June 16, 2013
Declaration of Daniel A.
In Support of Motion for Summary Judgment and/or Summary Adjudication of Facts
1. I am Plaintiff in the above captioned matter.
1. I provide tours of Portland area locations for which I am compensated.
I telephoned Linda Abundis on May 6, 2013 at 2:10 pm and spoke with her to 2:15
pm and took notes asked her if “Tabitha
J of Eugene Oregon” was a name she used to publish a review about myself
on the publication Yelp. She
immediately stated “Yes.” “That’s
in the past.”
She stated that she wrote the review and sent it to her son Rich Abundis and he did the physical placement onto the Yelp publication. (Declaration of Rich Abundis stating that he placed the defamatory statements and contract interfering statements onto Yelp Exhibit One.)
Linda Abundis tc 5.6.2013 at 2:10-2:15p
LA, refuses to say if son is a probation officer
She, “yes. I used that name. look, we took the tour and that’s the end of it. Don’t call this number again.”
Linda Abundis hangs up.
3. Exhibit Two, is the exact Defamatory publication.
4. There are facts in the defamatory publication only Linda Abundis knows and it is written in her voice and no other persons Therefore it is more likely than not that Linda Abundis is the tortfeasor. Even if she denies her foregoing admissions, she has the burden to prove that she did not make the defamations and the evidence is overwhelming that she is the tortfeasor.
5. LINDA ABUNDIS’ defamation:…when the reservations were being made; we asked to do a tour the weekend to come and he replied, "well I'm Texas." Not knowing that he was the soul employee, we asked if that means we can't book the tour and he replied, "I just told you that I'm in Texas."
6. Analysis: Linda Abundis and no other person telephoned me when I was in Texas. I asked her afterwards if it was she who wrote the defamation and she admitted that she had.
7. LINDA ABUNDIS There was another couple on the bus, when I asked if they knew him they said no; it turns out that one of them went to high school with him.
8. Analysis: The other couple on the bus were my law partner and an office manager and defendant Linda’s son Rich. I discussed a case and motions and a motion for reconsideration and appeal with my law partner. Rich Abundis, who is a probation officer said “I gather you two are lawyers.” Only Linda Abundis says that we are “high school” chums (not true). She did not hear us tell Rich Abundis that we were law partners and that was how we know each other. Only Linda had that false assumption and she stated it in the defamation.
9. LINDA ABUNDIS (We) finally find the house; he's unsure which one it was, so I find a pic using .
10. Analysis: Linda Abundis (the “I” in the defamation) as I drove the van, stuck her telephone into my face and no other person produced the phone picture for me (we were already at the location).
11. LINDA ABUNDIS The lunch place, The Slide Inn, was great. . .and he took us there because he gets a cut of the profits.
12. The only people I took to the Slide Inn was Linda and Rich. Linda Abundis is the only person who stated to me that her food was “great”
13. I do not and have never gotten a “cut of the profits” from the Slide Inn or any other tourist location.
14. LINDA ABUNDIS I couldn't get off the bus fast enough!
15. Analysis: When the van returned to her car, Linda Abundis quickly exited the van while Rich stayed behind and asked about where the photographs would be on the trip.
16. Therefore, by a preponderance of the evidence, it was Linda Abundis who defamed me and intentionally interfered with my business by urging other people to breach their contracts with me.
17. Defendant Linda Abundis admitted to me, using the anonymous name of “Tabitha J” of “Eugene Oregon” defamed me by stating that I
a) operated a business by way of a dishonest scheme:
b) was operating a scheme for making money by dishonest means,
c) tricking somebody: to obtain money or other goods from somebody by dishonest means,
d) that I had taken a bribe from a business owner to take his guests to the business owner’s establishment or in some other fashion had breached my duty of covenant of good faith and fair dealing by betraying my tourists for my own financial gain,
e) that I had been arrested,
f) that I showed up late,
g) that I had staged customers as part of this fraudulent enterprise,
h) that my transport was dilapidated
i) and my transport dangerous ,
j) that my transport had a large opening which pours in cold air,
k) that I was so ignorant of the operation of the bus that I pressed the H for horn instead of turning on the Heater,
l) that there was broken glass and
m) stains on the seats,
n) that I did not know where he was going on the tour,
o) that I barely knew anything about the area, and also
p) defendant Tabitha J demanded that other people post defamations and
q) that people who had already purchased a spot on the tour should breach their agreement with me,
r) that I was rude, and
18. Linda Abundis also said that I lied about my methods for acquiring work in the entertainment industry,.
19. Linda Abundis aka Tabitha J is a Program Assessor and is engaged in the education and evaluation profession, has a deep knowledge of ethics, defamation and Oregon Law and defendants profound responsibility to victims of false statements and the damage it will cause a fellow Oregon resident (Exhibit Three, Linda Abundis’ website)
20. The statements that Linda Abundis made were false and she made these defamatory statements knowing that they were false or with reckless disregard for the truth.
a) In fact, I do not operated a business by way of a dishonest scheme:
b) I was not operating a scheme for making money by dishonest means,
c) I was not tricking somebody: to obtain money or other goods from somebody by dishonest means,
d) I had not taken a bribe from a business owner to take my guests to the business owner’s establishment or in some other fashion ,
e) I had not breached my duty of covenant of good faith and fair dealing by betraying my tourists for my own financial gain,
f) I had not “taken a cut from the profits” of the Slide Inn or any other business to take tourist to any location,
g) I had not been arrested,
h) I had not showed up late,
i) I had no staged customers,
j) that my transport was not dilapidated Indeed, it is considered a “new” diesel Ford F 350 with only about 55,000 miles on it. As such it is not considered “old” and dilapidated until it reaches about one million miles, (Photo Exhibits- photograph taken by me on March 23, 2013))
k) and my transport was not dangerous , it was inspected by the DMV and found to be suitable and safe for use on Oregon highways and roads,
l) that my transport did not have a large opening which poured in cold air, (Photograph of door with no large opening letting cold air in- photograph taken by me on March 23, 2013)
m) that I was not so ignorant of the operation of the bus that I pressed the H for horn instead of turning on the Heater, (photograph, there is no H for the horn. There is no H for the heater either)
n) there was no broken glass inside the transport (photograph taken by me on March 23, 2013) There were no stains on the seats of the transport, (photograph taken by me on March 23, 2013)
o) I did know where he was going on the tour,
p) that I knew the area,
q) , I was not rude, and
21. that I did not lie about my methods for acquiring work as an actor in the entertainment industry,. Before I permitted Linda Abundis to board I inspected all seats and all parts of the van. They were all in pristine condition.
22. Linda Abundis stated that there were stains on the seats. There are and were no stains on the seats. Indeed, while the bus has 55,000 miles, the bus seats had ZERO miles as I purchased them new, and in the plastic wrap and shipped them from Indiana.
23. Linda Abundis was the very first person to ever sit in any seat she used on the van and if there was stains on that seat then it was her that put them there. But an inspection on March 23, 2013 showed no such stains as she defamed and published (Photograph by me of the seats Abundis used)
24. Abundis also defamed and published that there was broken glass on the van. There was no broken glass on the seats-they were new out of the plastic and she was the first person to sit on the new seats. (Photograph made on March 23, 2013 after her defamation)
25. Abundis defamed me by stating that I was so incompetent and dangerous as a driver that when she asked for Heat, that I instead pressed the Horn. This is a flat out falsehood. There is no H for heat. There is no H for Horn. It is a pure fiction by Linda Abundis (Photograph made by me on March 23, 2013)
26. Abundis defamed and published that there was a large hole in the door that allowed cold air inside on her and others. This is and was a complete and total falsehood as this photograph from March 23, 2013 of the van clearly shows.
27. Defendant Linda Abundis defamed me by stating that I drove the van down a one way street at the NBC house used to film Monroe scenes. I did not. The street is a dead end street and her defamation again is a falsehood by her to say that I am an unsafe driver.
28. Defendant Linda Abundis aka Tabitha J demanded that other people post defamations and as such she is liable for suggesting that there is reason to also defame me
29. Defendant Linda Abundis published that people who had already purchased a spot on the tour should breach their agreement with me .
30. Defendant Linda Abundis did urge people who read the defamation she caused to be published on Yelp to not contract with me. At least 7 people stated that her review was “helpful” and these 7 did not contract with me who read her review.
31. Approximately 2 to 5 people a day find me using Yelp as a feeder to my webpage at www.HollywoodNorthwest.com After Linda Abundis mitigated her damages by taking down her defamations the traffic began to come back to my website of future customers. At the time her defamation was broadcasting I received no or very little traffic originating from Yelp and her defamation.
32. I sold 60 tickets using the advertising agency Living Social. After Linda Abundis’ defamations of the 60 tickets I sold, only 38 showed up.
33. Each person averages a gratuity of $20. Therefore of the 22 people that did not show up because of Abundis’ defamation, I lost $20 times 22 people or $440.
34. It has been my experience that each customer will refer an additional customer. Tickets sell for $120 and therefore I have lost the immediate future income of $2640.
35. I returned to Living Social to act as advertising agency. The read the defamation that Linda Abundis wrote. Thereafter, they refused to enter into any new contract with me.
36. It was my business plan and intention to utilize Living Social in the future and sell 60 new tickets each week for a total of $28,880 per month during the spring season. Because of Linda Abundis’ defamation I could not do so
37. As each customer that I have averages out to a referral to a new customer then I have lost an additional $28,880 in lost referrals.
38. Linda Abundis or Yelp, Inc. has taken the defamation off of public view to apparently mitigate their damages.
39. The defamatory statements directly concerns me.
40. The defamatory statement by Linda Abundis was intended to subject me to contempt, to diminish the esteem and respect of me and to excite adverse and derogatory opinions about me and my reputation as a guide and to damage my tour business by urging other people who already have a contract with me to breach said contracts.
41. As a direct and foreseeable result of defendant Linda Abundis’ torts, my reputation as a guide has been damaged as I stated above as special damages.
22. I am a lawyer, licensed in the largest jurisdiction of the United States, am a member of the United States Supreme Court Bar, has practicing law since 1984, is registered with the Solicitors Regulatory As such these false statements are particularly injurious and I have suffered pain, indignation, emotional distress entitling me to general damages.
23. Therefore, I have been damaged by Defendant Linda Abundis as follows:
a. $20 times 22 people or $440.
b. Immediate future income of $2640.
c. Refusal of Living Social to contract with me, 28,880 for two months loss of $57,600 TOTAL SPECIAL DAMAGES $60,680
d. General damages of $100,000,
e. For disparaging my services, Unfair Business Practice ORS 646.608 Additional unlawful business, trade practices, attorney fees of $20,000;
I declare under penalty of perjury that the foregoing is true and correct and that this declaration was made of my own personal knowledge at Tigard Oregon on June 18, 2013.
Points and Authorities in Support of Summary Judgment Motion
Stating that a bus driver is unsafe as a bus driver
to the people who paid him and employed him
Is defamation and intentional interference with contract
There is one Oregon case that is on all fours with the instant matter.
A statement is defamatory if it would subject an individual to:
"'hatred, contempt or ridicule * * * [or] tend to diminish the esteem, respect, goodwill or confidence in which each is held or to excite adverse, derogatory or unpleasant feelings or opinions against [him].'" King v. Menolascino, 276 Or 501, 504, 555 P2d 442 (1976) (quotingFarnsworth v. Hyde, 266 Or 236, 238, 512 P2d 1003 (1973) (bracketed material in original)). Accord Reesman v. Highfill, 327 Or 597, 603, 965 P2d 1030 (1998).
The tort of intentional interference with economic relations consists of six elements:
“(1) the existence of a professional or business relationship (which could include, e.g., a contract or a prospective economic advantage), (2) intentional interference with that relationship, (3) by a third party, (4) accomplished through improper means or for an improper purpose, (5) a causal effect between the interference and damage to the economic relationship, and (6) damages.” McGanty v. Staudenraus, 321 Or. 532, 535, 901 P.2d 841 (1995).
James M. Kraemer v. Jeffrey M. Harding and Patricia A. Harding, John Lundberg and Janet Lundberg Case Number: 941891; CA A97884
Plaintiff was employed as a bus driver on the route that served defendants' children. Defendant Dr. Harding testified that she believed that it was "our civic duty to go down and tell the school the things we had heard”. about the bus driving attributes of plaintiff. Defendants testified that they knew that plaintiff had an economic relationship with the school district but that it did not matter to them whether he was terminated from his job if that was what was required to remove him from the bus route. Jeffrey Harding (Mr. Harding) also testified that he knew that plaintiff was an employee of the district and that "[i]t was not [his] concern how [plaintiff] was taken off the route."
Defendants used hearsay and innuendo to get the bus driver plaintiff fired from his job. The school board official contacted the mother of the fifth-grade girl witness, but he did not remove plaintiff from the route as a result of his investigation.
Defendants filed their answer and admitted that "in their opinion plaintiff had driven the bus dangerously and had endangered the safety of their children and was an incompetent bus driver." As a defense, defendants alleged that "[a]ll statements of fact made by defendants were true" and that their reports to school district officials were privileged.
Outcome: The jury returned a verdict against each defendant and in favor of plaintiff in the amount of $5,387.27 in economic damages, $127,500 in noneconomic damages and $75,000 in punitive damages. Defendants appeal from the resulting judgment.
Comments: Affirmed by the Court of Appeals of the State of Oregon
Unfair Business Practice ORS 646.608, attorney fees and punitive damages are awarded for disparaging a person’s services.
Linda Abundis may not defeat this summary judgment motion
By merely stating that she didn’t make an admission
At trial, plaintiff will testify that Linda Abundis admitted that she wrote the defamation and that someone else caused it to be published on Yelp. Plaintiff will testify as to all of the elements upon which the jury can conclude that it was Linda Abundis and no other that drafted the defamation ( declaration 3 through 16)
It is of no moment as to who she employed to publish it. It would be as if she wrote a letter to the editor but says that it was the editor but not her who is liable for the defamations. Her burden at trial would be that she must prove that she was not the originating author.
“The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at trial.” Rule 47 C
Daniel A. June 18, 2013
Certificate of Service
I swear under penalty of perjury that I have served the foregoing motion , Points and Authorities and supporting documents on interested parties by electronic means and by placing into the US Mail, fully prepaid these documents and addressed:
McNamer and Company for Yelp, Inc.
1400 sw Fifth Ave.,
Portland OR 97204
Luke Reese, GHR lawyers for Linda Abundis, Rich Abundis, C. Community College
PO Box 749
Salem OR 97308-0749