Timothy Sailors vs City of Fresno/LEAD CASE

Complaint Information

JAMES R. PAGLIERO, ESQ. — SBN 095898 E-FILED

PAGLIERO & ASSOCIATES 7/12/2016

A Professional Corporation FRESNO COUNTY SUPERIOR COURT 5701 Marconi Avenue By: C. Cogburn, Deputy

Carmichael, CA 95608 (916) 481-7100 Fax: (916) 481-7101

Attorneys for Defendants SMG HOLDINGS, INC. and CITY OF FRESNO (Public entity exempt from filing fee Pursuant to Government Code §6103)

SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF FRESNO

Case Number: 14-CE-CG-00069 {Consolidated with Case No. 14-CE-CG-00807} {Assigned for all purposes to Judge Alan Simpson,

TIMOTHY SAILORS, an individual, ) ) ) ) Dept. 503} ) )

Plaintiff,

DECLLARATION OF WILHELMINA

CITY OF FRESNO, a municipal) SANTANA IN SUPPORT OF OPPOSITIO corporation; COUNTY OF FRESNO, a) TO THE MOTION BY DEFENDAN municipal corporation; SMG HOLDINGS, ) FUTURE FARMERS OF AMERICA FOK INC.. et al. SUMMARY JUDGMENT OR, IN TH

’ ALTERNATIVE, MOTION FOR

SUMMARY ADJUDICATION OF TH FIRST AMENDED CROSS-COMPLAIN

FILED BY SMG HOLDINGS, INC. AN

CITY OF FRESNO

Defendants.

AND RELATED ACTIONS.

DATE: JULY 26,2016 TIME: 3:30 P.M. DEPT: 503

TRIAL: October 11, 2016

I, Wilhelmina Santana, hereby declare as follows.

1. I have personal knowledge of the matters set forth in this declaration. In additio to information within my personal knowledge I have also obtained information from records of SMG Holdings, Inc. (SMG). Those records were prepared in the ordinary course of business b

SMG personnel at or near the time of the acts, conditions, or events referenced therein. The

Declaration of Wilhelmina Santana in Support of Opposition to FFA’s Motion for Summary Judgment/Summary Adjudication of the Amended Cross-Complaint by SMG Holdings/City of Fresno

Declaration of Wilhelmina Santana in Support of Opposition to FFA’s Motion for Summary Judgment/Summary Adjudication of the Amended Cross-Complaint by SMG Holdings/City of Fresno sources of the information contained therein, and the methods by which the records were prepared, are such as to indicate the trustworthiness of the records. Further, I have received information directly from representatives of Future Farmers of America (FFA) which I discuss i

sources of the information contained therein, and the methods by which the records were prepared, are such as to indicate the trustworthiness of the records. Further, I have received information directly from representatives of Future Farmers of America (FFA) which I discuss i

this declaration. If called as a witness, I could and would competently testify to the matter stated in this declaration.

2. I am employed as the SMG Director of Event Services for the Fresno Conventio & Entertainment Center (FCEC). I have held that position since February 2006. I have bee employed by SMG for 21 years. I have been working at the FCEC for 11 years. I was the Event Director for the 2013 FFA convention at the FCEC. I have been the Event Director for eac FFA convention at the FCEC starting in 2009. (FFA has held its annual convention at the FCEC since as long as I have worked at the FCEC.)

3. Based on my communications with FFA representatives, they have made it clea to me that because of the amount of people who attend the FFA yearly convention at the FCE (i.e., 4,000-5,000 plus), and the limited available parking facilities in the general area of the FCEC, they would very much like to have all of the parking spaces in the O Street parking lo available to only those persons who attend the FFA convention. Those representatives have made it abundantly clear to me that having as much parking as possible for use by those who attend the FFA conventions at FCEC is very important to FFA.

4. In this regard, SMG has agreed that FFA can issue their own parking passes fo the O Street parking lot in an unlimited number. As those passes are used by persons attending the FFA convention, the SMG parking attendants in the O Street parking lot keep a tally of the use of those passes and then SMG chargesparking passes. SMG does no receive any money from the persons who are issued those passes only. FFA receives that money. SMG does not distribute any of those FFA-issued passes to persons who attend the conventio (or anyone else). FFA solely determines at what price they will sell the passes they issue.

5. FFA, for its 2013 convention, occupied the following areas of the FCEC: (1 Selland Arena, (2) Valdez Hall, (3) Exhibit Hall I, (4) Exhibit Hall II, and (5) Exhibit Hall IIL

This is reflected in the document entitled “Exhibit “A” to Use License Agreement” which is

Declaration of Wilhelmina Santana in Support of Opposition to FFA’s Motion for Summary Judgment/Summary Adjudication of the Amended Cross-Complaint by SMG Holdings/City of Fresno

Declaration of Wilhelmina Santana in Support of Opposition to FFA’s Motion for Summary Judgment/Summary Adjudication of the Amended Cross-Complaint by SMG Holdings/City of Fresno O © ~3 O u»n B

O © ~3 O u»n B

attached to a true and correct copy of the Use License Agreement (ULA) between SMG and FFA, which is Exhibit F in the separately bound evidence filed in support of the opposition b SMG and Fresno to the motion for summary judgment by FFA. Exhibit “A” to the ULA is page 16 of Exhibit F. The areas of the FCEC which were used by FFA for the 2013 convention were also listed on page 17 of the ULA under the heading “Rent.”

6. The 2013 FFA convention was held between April 16 and 23, 2013 including the move-in and set-up dates. On April 22, 2013 no other events were taking place at the FCEC, including the play “Wicked.” Accordingly, on April 22, 2013 there were no events at the FCEC which would have resulted in any vehicles being parked in the O Street parking lot. While there were SMG employees working at the FCEC on April 22, 2013, they were all instructed to park their vehicles in the parking garage at the intersection of O Street and Inyo Street, and not in thej O Street parking lot.

7. I am very familiar with the Use License Agreement (ULA) between FFA and SMG. While the O Street parking lot is not mentioned specifically in the ULA, its use by FF/ via its issuance of parking passes became a routine part of FFA’s use of the FCEC facility for its yearly convention starting well before the 2013 convention.

8. There is no separate agreement entered into between FFA and SMG for FFA’S ability to issue parking passes for the O Street parking lot. Instead, that was handled unde Section 5(c) of the ULA, and administered by a tally being kept of the FFA-issued parking passes being used by persons attending the FFA convention, and then FFA was billedthose parking passes. That billingFFA-issued parking passe was billed to FFA under Section 5(c) and Section 6(b) of the ULA.

9. Section 5(c) of the ULA, starting on page 4 of Exhibit F, is entitled “Additiona Equipment and Service Expenses.” Subparagraph (i) provides “SMG shall provide, as required for each Event, the following services (collectively, the “Services”), the expenditures which are paid by Licensee to SMG (“Additional Equipment and Service Expenses”): ... extra service requested by SMG at the request of Licensee...” (ULA, p. 5.) Those “extra services” included

the issuance by FFA of parking passes to be used by persons attending the FFA convention anc

Declaration of Wilhelmina Santana in Support of Opposition to FFA’s Motion for Summary Judgment/Summary Adjudication of the Amended Cross-Complaint by SMG Holdings/City of Fresno

Declaration of Wilhelmina Santana in Support of Opposition to FFA’s Motion for Summary Judgment/Summary Adjudication of the Amended Cross-Complaint by SMG Holdings/City of Fresno—m DYDY )W N = O

—m DYDY )W N = O

parking in the O Street parking lot without havingCity of Fresno any time they did so. The persons holding those FFA-issued parking passesFresno t park in the O Street parking lot.

10. Section 6(b) of the ULA on page 5 of Exhibit F, is entitled “Payment Terms.’ Paragraph (b) provides: “Additional Equipment and Service Expenses....SMG shall deliver to Licensee an Event Resume setting forth SMG’s estimates of all expenses, which SMG will incu in connection with the Services. SMG shall deliver to Licensee an Event Settlement setting fort the expenses incurred for the services rendered by SMG...”

11. Exhibit G in the separately bound evidence filed in support of the opposition b SMG and Fresno to the motion for summary judgment by FFA is a true and correct copy of the Event Resume provided to FFA prior to the 2013 convention. It provides, relative to parking, the

following information:

PARKING INFORMATION

1. Parking $7.00/car/event, $2.50/car/event for Seniors 65+

2. Client [FFA] will distribute daily parking passes to people who paid for them at registration. (Example of pass to follow.) Passes need to be tallied for this Event. When they come in, so as not to charge twice for people that leave and come back in one day, the PA [parking attendant] needs to initial or stamp the pass with the date and the driver will keep the pass so if they leave and come back they will show the PA that they have already been checked in once...

12. Exhibit H in the separately bound evidence filed in support of the opposition b SMG and Fresno to the motion for summary judgment by FFA is a true and correct copy of page 1 of the 2-page Event Settlement provided to FFA for the 2013 convention. It indicates a charge of $19.411 for “k. Other Production Expense(s).” Exhibit I in the separately bound evidence filed in support of the opposition by SMG and Fresno to the motion for summary judgment b FFA is a true and correct copy of a document entitled “Event Staffing & Miscellaneou Expenses” which is page 2 of the Event Settlement document. That document indicates the

charge of $19,411 was for “Parking Passes (Regular Rate (Conf. Sat-Tue).)” and was based upo

Declaration of Wilhelmina Santana in Support of Opposition to FFA’s Motion for Summary Judgment/Summary Adjudication of the Amended Cross-Complaint by SMG Holdings/City of Fresno

Declaration of Wilhelmina Santana in Support of Opposition to FFA’s Motion for Summary Judgment/Summary Adjudication of the Amended Cross-Complaint by SMG Holdings/City of Fresno 2,773 units at a rate of $7.00 for a total of $19,411. That unit total of 2,773 included 2,565 parking passes issued by FFA and distributed by FFA to persons who attended the conference and 208 passes FFA requested for use by FFA AgriScience judges, career show exhibitors and tour escort volunteers. Those FFA judges, exhibitors and volunteers staffing the FFA convention are selected by FFA, not SMG or Fresno. That sum of $19,411 is one-third of the total amoun charged to FFA for their use of the FCEC to hold their 2013 convention.

2,773 units at a rate of $7.00 for a total of $19,411. That unit total of 2,773 included 2,565 parking passes issued by FFA and distributed by FFA to persons who attended the conference and 208 passes FFA requested for use by FFA AgriScience judges, career show exhibitors and tour escort volunteers. Those FFA judges, exhibitors and volunteers staffing the FFA convention are selected by FFA, not SMG or Fresno. That sum of $19,411 is one-third of the total amoun charged to FFA for their use of the FCEC to hold their 2013 convention.

13. The charge of $19,411FFA-issued parking passes was not billed to FFA, or paid by FFA, under Section 7 of the ULA (page 5) which is entitled “Revenue anc Costs.” The “parking lot fees” referenced in that section is the money actually collected by the SMG parking attendants for persons wanting to park in the O Street parkinghave a parking pass. SMG is unaware of what amount FFA received by its sale of the parking passes FFA issued. SMG did not collect any money from the persons to whom those passes were issued by FFA.

14. The tally of 2,773 FFA-issued parking passes presented to the SMG parking attendants at the O Street parking lot and at the Radisson garage (the two locations where thel FFA-issued parking passes could be used) was agreed to by FFA as accurate, and they paid the expenses for their 2013 convention including the amount of $19,411 for the use of those passes to park in either the O Street parking lot or the Radisson garage.

15. Based upon information provided to me from FFA, plus information from the SMG employees who worked the 2013 convention, it was estimated that about 5,200 people attended the FFA convention in 2013.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on this _}& day of July

2016, at Fresno, California.

Wilhelmina Santana

Judgment/Summary Adjudication of the Amended Cross-Complaint by SMG Holdings/City of Fresno

PROOF OF SERVICE

C.C.P. 1013(a) & 2015

CASE: Sailors v. City of Fresno COUNTY: Fresno County Superior Court NUMBER: 14-CE-CG-00069

[ am a citizen of the United States and am employed in the County of Sacramento. I am over the age of eighteen years and not a party to the within above-entitled action; my mailing busines address is 5701 Marconi Avenue, Carmichael, CA 95608.

On the date set forth below I served the following:

DECLARATION OF WILHELMINA SANTANA IN SUPPORT OF OPPOSITION TO THE MOTION BY DEFENDANT FUTURE FARMERS OF AMERICA FO

SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY

ADJUDICATION OF THE FIRST AMENDED CROSS-COMPLAINT FILED BY SMG

HOLDINGS, INC. AND CITY OF FRESNO

on all parties listed below by:

« A, Personal Delivery - by causing a true copy thereof, to be personally delivered to th person(s) and to the address(es) set forth below.

FARMERS OF AMERICA

Douglas A. Sears, Esq. Jack A. Klauschie, Jr., Esq.

MATHENY SEARS LINKERT & JAIME LLP

3638 American River Dr

Sacramento, CA 95864

__ Overnight Delivery - by placing a true copy thereof enclosed in a sealed envelope, with delivery fees paid or provided for, in a designated area for outgoing overnight mail, addressed as set forth below.

Attorneys for Plaintiff TIMOTHY

Garrett May, Esq. SAILORS

THE MAY FIRM, INC. 297 Santa Rosa Street, Suite B San Luis Obispo, CA 93405

Robert Hamparyan, Esq.

Laura M. Sasaki, Esq.

LAW OFFICE OF ROBERT HAMPARYAN

275 West Market Street

San Diego, CA 92101

Co-Counsel for Plaintiff

TIMOTHY SAILORS

Declaration of Wilhelmina Santana in Support of Opposition to FFA’s Motion for Summary Judgment/Summary Adjudication of the Amended Cross-Complaint by SMG Holdings/City of Fresno

Declaration of Wilhelmina Santana in Support of Opposition to FFA’s Motion for Summary Judgment/Summary Adjudication of the Amended Cross-Complaint by SMG Holdings/City of Fresno Attorney for Plaintiff REEF SUNSET

Attorney for Plaintiff REEF SUNSET

Clark W. Patten, Esq. ar n, =54 UNIFIED SCHOOL DISTRICT

LAW OFFICES OF CLARK W. PATTEN

1655 North Main St., Suite 106—#348 Walnut Creek, CA 94596

I declare under penalty of perjury under the laws of the State of California that the foregoing 1 true and correct.

Executed on July l - , 2016, at Carmichael, Califorgia. o