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lAN FRASER-THOMSON (SBN 73526)

ANDREW S. WERNER (SBN 135795)


CESARI, WERNER AND MORIARTY
P. 0. Box 27307
San Francisco, CA 94127-0307
Telephone: (650) 991-5126
Facsimile: (650) 991-5134

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PHILIP A. PEREIRA (SBN 084914)


McDOWELL SHAW & GARCIA
1250 Oakmead Parkway, Suite 210
Sunnyvale, CA 94085-403 7
Telephone: (408) 927-7250
Facsimile: (408) 927-7350

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Attorneys for Defendant JOHN B.

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

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IN AND FOR THE COUNTY OF SANTA CLARA

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vs.

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JOHN B., a minor by and through his


Guardian ad Litem; JOHN R., et al.,

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DEFENDANT .JOh B.'S OPPOSITION


TO PLAINTIFFS' MOTION IN LIMINE
NO. 1 SEEKING TO PRECLUDE
EVIDENCE OF LAWRENCE POTT'S
PARENTAGE

Plaintiffs,

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CASE NO. l 13CV244689

SHEILA POTT and LAWRENCE POTT,


individually and as Successors in Interest to
the Estate of Audrie Pott, deceased,

Defendants.

Trial Date:
Time:
Dept:
Judge:

April 1, 2015
1:30 p.m.
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Honorable Brian C. Walsh

The plaintiffs' very broad Motion in Limine 1 seeks to eliminate in one fell swoop all

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evidence concerning Audrie Pott's discovery with respect to her biological father and its

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psychological impact on her. Purposefully or not, the plaintiffs' motion misses the point as to the

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probative value of this particular evidence. Specifically, the evidence will point out Audrie

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Pott's anger and mistrust, as well as her fractured relationship with SHEILA and LAWRENCE

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POTT at the time that she decided to take her own life. The evidence goes directly to her state of

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mind and explains, in part at least, her apparent sense of hopelessness. This parentage issue was

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umesolved in Audrie Pott's life less than two weeks before she committed suicide.
DEFENDANT JOHN B.'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. I SEEKING TO PRECLUDE
EVIDENCE OF LAWRENCE POTI'S PARENT AGE

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

On August 28, 2012, which was 13 d ays before Audrie Pott committed suicide, SHEILA

POTT visited Psychologist Joy Sweet. Ms. Sweet's notes of that initial visit state in part as

follows:

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Looking back now, JOHN B. will discuss the history of this issue and the impact it had
on Audrie's psychological well-being.
The following information comes directly from LAWRENCE POTT's Trial Brief filed in

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a paternity action entitled Michael Lazarin v. Sheila Pott on November 29, 2005. It provides a

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brief history as to what transpired.

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DEFENDANT JOI-IN B. 'S OPPOS!TfON TO PLAINTIFFS' MOTION IN LIMINE NO. I SEEKING TO PRECLUDE
EVIDENCE OF LA WRENCE POTT'S PARENT AGE

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III
DEFENDANT JOHN B. 'S OPPOSIT10N TO PLAINTIFFS' MOTION IN LIMINE NO. I SEEKING TO
PRECLUDE
EVIDENCE OF LAWRENCE POTI'S PARENTAGE
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In December of2010 when Audrie would have bee n roughly13 years old, Lazarin

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contacted her onFacebook and told her that he was her naturalfather. In aFacebook exchange

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betweenLisaPott(LAWRENCE POTT's new wife) andMichaelLazarin, it was clear that this

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had a serious psychological impact onAudrie. OnMarch l0, 2012, LisaPott communicated

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withMichaelLazarin regarding his disclosure toAudrie and stated as follows:

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"Hi, Michael,

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I want to extend an olive branch to you and let you know thatI can
be your outlet if you have anyquestions or concerns aboutAudrie.
Finding out has been hard on her and she is dealing with a Jot of
emotionsand anger towards her mother. We have told her
evervthing and she now knows the wholetruth. She is only13, so
at this point she is not sure how she feels. She mentioned to me
that she wants towait until she is older to have more contact with
you. If that changes then we can dealwith it whenshe is ready. 1
saw the pictures of your little boy- congratulationsI do see the
resemblance wi th Audrie, pretty amazing.

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... Sheila continues to haveturbulence in her life - - a result of


poor morals and habituallying, very sad. Sheila continues to
protect herself and her own interestsandhas never acknowledged
the damage she has done." (Facebook post by LisaPott on
March 10, 2011at1:52 p.m.; emphasis added.)
Later that month, Michael Lazarin again contactedAudrie and againLisaPott responded.
"I need to contact you again about Audrie. You sent her a message
againwhen you told us that you would not until she was 18. The
last time you contacted hershe missed 3 days of school. Her
grades droppeddramatically. She was spending so much time with
theguidance counsellorOtic) that wefinally have her seeing a
therapist. Weare not going to forceAudrie to block you. She is a
child and should not have to make those decisions. I know she
looks grown up, but she is achild inside and cannot handle this
DEFENDANT JOHN B.'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. I SEEKING TO PRECLUDE
EVIDENCE OF LAWRENCE POTI''S PARETAGE

emotionally. All herlifo she haspresented symptoms of ADHD.


when the reality was that she suffers from an anxiety disorder.
This is veryhard on her. What you see of her posts on Facebook is
not the whole Audrie that we know and love and understand."
(Facebook post by Lisa Pott on May 29, 2011at8: 16 a.m.;
emphasis added.)

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A

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copy of the Facebook messages between Michael Lazarin and Lisa Pott is attached

hereto, labeled as Exhibit "A" and incorporated herein by reference.

In mid-May of 2011, Lisa Pott and LAWRENCE POTT put Audrie into therapy with a

over a year up

behavioral therapist named Louise Burnham. Ms. Burnham treated Audrie for

until May 30, 2012 when LAWRENCE and Lisa pulled her out of therapy. Du.ring the initial

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visit with Lisa and LAWRENCE, Ms. Burnham, wrote:

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Louise Burnham kstified about the initial meeting she had with LAWRENCE and Lisa
Pott as follows:

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DEFENDANT JOHN B. 'S OPPOSlTION TO PLAINTIFFS' MOTION IN LIMINE NO. I SEEKING TO PRECLUDE
EVIDENCE OF LAWRENCE POTI'S PARENTAGE
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On her first visit with Audrie, Therapist Burnham wrote:

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A copy of Ms. Burnham's complete notes is attached hereto, la beled as Exhibit "B" and

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Besides SHEILA admitting to Joy Sweet that LAWR.ENCE was not Audrie's biological

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father and Lisa and LAWRENCE admitting to Louise Burnham that LAWR.ENCE was not

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Audrie's biological father, a number of people wre aware ufthis fact.

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Deborah Black, who was an older friend of Audrie's with whom she studied the Bible,
testified as follows:
"Q. Okay. Were you aware at one time that Audrie had been in
therapy?

A. Yes.
Q. Okay. How did you become aware of that?

A. When Audrie found out about her real dad in eight grade,
it became evident that she was having a hard time, so my mom,
in talking with Larry, we had said that we thought it would be
a good idea.
Q. Okay. What do you mean by, 'When Audrie found out about
her real dad?'

A. She never knew that Larry was not her real father until
eight grade when her real dad contacted her through
Facebook.
Q. We're talking about a guy named Michael Lazaren (sic)?
DEFENDANT JOHN B. 'S OPPOSITION TO PLAINTIFFS' MOTION IN LI MINE NO. 1 SEEKING TO PRECLUDE
EVIDENCE OF LAWRENCE PO-IT'S PARENTAGE

A. Yes.
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Q. Have you ever spoken with Michael Lazaren (sic)?

A. No.

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Q. Okay. Were you present when your mother and Larry are
talking about, you know, 'What are we going to do because
Michael Lazaren (sic) has contacted Audrie?"

A. Yes.

Q. Did Larry ever admit that he was not Audrie's biological


father?

A. Yes.
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Q. Did you talk to Audrie about her feelings about this disclosure?

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A. Yes. She was really upset and had said that she had

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something to tell me and, um, it was news to her. She hadn't - was completely blindsided. I had speculated from Lisa's side
comments that that was not her biological father. So I had
already - - had some idea.

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Q. So before Audrie even tells you that there's something that is


bothering you and she needs - - Lisa had already sort of - -I'm
going tu use a writer's tenn now - - foreshadowed that that might
be the problt:m or the issue?

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A. They had not said before - -

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Q. Right.

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A. - -what the particular issue was. Um, so that was new. But
when Audrie had told me that that was not her biological
father, it was not news to me.

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Q. I see. And so it sort of made things clear about past comments


Lisa had made?

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A. Yes.

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Q. Do you remember any of those past comments now?

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A. She had said, um, 'Sheila is blond, Larry is blond, put it


together.'" Deposition of Deborah Black 19: 17 - 21:15)

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Audrie's best friend, Emily Penuen, also testified about Audrie's anger issue with respect

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to learning about her biological father.

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III

All right. Did Audrie ever discuss with you the issue about,
"Q
quote, her natural father or biological father?
DEFENDANT JOHN B. 'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 1 SEEKING TO PRECLUDE
EVIDENCE OF LAWRENCE POIT'S PARENTAGE

In eighth grade she told me he was trying to contact her.

I take it this is somebody other than Larry?

Yes.

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And if you can recall, what was her reaction to trying trying to be contacted by this person saying he was her biological
father?
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A
She was confused and angry. Very angry at her mother
because she was unaware.

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Did Audrie ever tell you at any point in time that her
mother or Larry and Lisa had told her that, in fact, Larry was not
her biological father?

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No. She told me she did not know.

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Q
So as far as you know, it was still a mystery to Audrie at the
point in time that she died?

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Yes. No, at eighth grade.

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Oh, eighth grade. I'm sorry.

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By the time Audrie dies, do you know if she had an


understanding as to who her biological father was?

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A
Yes. From the Facebook messages she believed that that
was her biological father.

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The person that was trying to contact her?

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Yes.

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Do you remember his name?

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No.

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Michael Lazaren (sic)?

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Yes.

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Q
And roughly how long before her death was it that, you
know, she told you that, gee, this guy's my biological father.

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Q
Okay. Did you have any conversations with her about that
issue after that or was that just sort of a dead-end issue with you?

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End of eighth grade. So about a year and a half.

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She was just angry at her parents." (Deposition of Emily
Penuen, 38:14 - 40:3)
DEFENDANT JOHN B.'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. I SEEKING TO PRECLUDE
EVIDENCE OF LAWRENCE POTI'S PARENTAGE

In responding to Requests for Admission, LAWRENCE POTT failed to assert that he was
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Audrie's biological father.


SHEILA POTI responded to Request for Admission No. 1, Set One, from now-dismissed

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Defendant JANE C. as follows:

'"REQUEST FOR ADMISSION NO. 1:

Admit that plaintiff Lawrence Pott is not YOUR daughter


Audrie's biological father.

RESPONSE TO REQUEST FOR ADMISSION NO. 1:

Plaintiff has insufficient information to admit or deny this


request."

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When LAWRENCE POTT responded to similar Requests for Admission from JANE C.,

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he did not nave sufficient infom1ation to admit or deny that he was not Audrie Pott's biological

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father, either. What follows are quotations for LAWRENCE POTT's deposition taken on

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September 3, 2014.
"Q. Okay. Have you ever told anybody that you are not Audrie's
biological father.

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A. No.

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Q. Did you tell Deborah Black that you were not Audrie's
biological father?

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A. I did not tell Debora11 Black that I was not Audrie's biological
father.

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Q. Did you have any discussions with Deborah Black as to


Audrie's biological father?

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A. No.

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Q. How about Deborah Black's mother? Did vou ever tell


Deborah Black's mother that you were not Audrie's biological
father?

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//I
DEFENDANT JOHN B. 'S OPPOSITION TO PLAINTIFFS' MOTION rN LIMINE NO. I SEEKING TO PRECLUDE
EVIDENCE OF LAWRENCE POTI'S PARENTAGE
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A. I wouldn't have had that conversation because I don't know


that I'm not Audrie's biological father. (Deposition of
LAWRENCE ALAN POTT, September 3, 2014, 112:9 - 24;
emphasis added.)

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DEFENDANT JOHN B.'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. I SEEKING TO PRECLUDE
EVIDENCE OF LAWRENCE POTI'S PARENTAGE

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CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

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The defendants' experts will testify that the unresolved issue as to Audrie's biological

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father seriously affected her psychological and emotional well-being. The defendants' experts

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will testify that it was a significant factor in her decision to commit suicide in that it contributed

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to her feelings of despair and hopelessness.

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DEFENDANT JOHN B.'S OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. I SEEKING TO PRECLUDE
EVIDENCE OF LAWRENCE POTI'S PARENTAGE

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In conclusion, it is easy to see why the plaintiffs are attempting to exclude evidence and
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testimony from virtually anyone who could shed light on Audrie's state of mind with respect to

the issue of her biological father.

In the plaintiffs' instant Motion in Limine No. 1, they are trying to exclude information

about Michael Lazarin. In the plaintiffs' Motion in Limine No. 2., they are trying to exclude the

testimony of Joy Sweet and evidence of her records, as well as the psychological records of

SHEILA POTT from the Bill Wilson Center. In the plaintiffs' Motion in Limine No. 10, they are

trying to exclude the evidence of Judge Carr's comments in the paternity action. In the plaintiffs'

Motion in Limine No. 1 1, they are trying to exclude the e-mails between Lisa Pott and the

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Lazarin family discussing Audrie and her condition. The plaintiffs' Motion in Limine No. 12

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attempts to exclude the testimony of Deborah Black. The plaintiffs' Motion in Limine No. 1 3

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attempts t o exclude the testimony o f Audrie's therapist, Louise Burnham. The plaintiffs' Motion

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in Limine Nos. 1 5 and 16 attempt to exclude the testimony of Dr. Richard Shaw of Stanford.

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The plaintiffs' Motion in Limine No. 16 seeks to exclude the testimony of Dr. Joanna Berg.

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finally, the plainti.ITs havt; made a moliun to exclude .Lvfo:hael Lazarin from a public triai.

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Respectfully submitted,

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DATED: March 30, 2015

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McDOWELL SHAW & GARCIA

PHIPA:PifREIRA
Attorneys for Defendant JOHN B.

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CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

EXHIBIT A

Michael Lazarin March 10,201112:28pm

My intentions were only to le t her know that me and my family love her and t h at she has never been
for gotten and let her know that she has a baby brother which was born on December 2nd. I am grateful
to

you and larry that you have given her the love she dese rve s. I hav e no hard feelings towards your

family. It was very unfortunate that Shella looked only after her best interest and hurt so many p eople. I
only sent her o ne msg and have not contacted her again. I only hope that someday the truth wi ll be told

to her in re gards to what happened, she deserves th at. ! am waiting till she turns 18 to reach out to her
and begin the father daughter relationship th at was taken away from me. I have !eft everything In Gods
hands and truly grateful vou and larry have given her the family foundation s he deserves.

No other

contact will be made, I w ill wait patiently the remaining 4 years.


Lisa Pott March 10,2011 3.:52pm

Hi Michael,
I

w ant to extend an olive branch to you and let you knaw that I ca n be your outlet if you have any

questi ons or::oncerns about Audrie. Pinding out has been hard on h e r and she is deallng with a lot of
emotions and anger towards

her mother. We hve told her everything and she now knows the whole

truth. She is o nly 13, so at this point she is not sure how she feels. She mentioned to me that she wants

to w ait until she is older to have more contact with you. If that changes then we can deal with it when
she is ready. I saw the pictures of your little boy- congratulations I do see the resemblance with Audrie,
pretty amazing.

Larry and I feel a strong responsibility to provide a stable, happy family home for Audrie. I have a great
relationship with her and try to

be a good example to 1'1er. She is funny, athletic and popular at school.

She ha 3 li ttle siblings tha t adore her. Sheila continues to ha ve turbulence in her fife - a result of poor

morals and habitual lying, very sa d . Sheila continues to protect herself and her own interests an d has
never acknowledged the damage she has done. I wish

you allthe best with your new family.

Lisa.

Micl!ael

Laz11rin March 10. 20113:25pm

Lisa, this has to be the happiest day ofmy life besides the birth of my son Connor. I am truly
grateful for all the love. care, suppo1t you and Larry have given Audrie. For the past 7 yeai:s
there has never been a minute of the day that I have not thought of her. I will always be grateful
to you and

your family for giving her the best life possible. I never thought I was going to be

able to make it living 'lll.thout her but the love, support of my family. and faith in God gave me
the strength "CO e11dure the heartbreak. I want to extend my hand/heart to you and yotu family, and

vvill always be here for anything you may need. Denette Percival is my sons mother and she
updates pictures of Connor daily we b oth send our love, respect and gratitude to your family, you r
children are beautiful!!

Lisa Pott May 29, 2011 8:16am

I need

,,..-

to

contact you again about Audrie. You sent her a message again when you told us that

days of school. Her


grades dropped dramatically. She was spending so much time with the guidance counsellor that
we finally have her seeing a therapist. We are not going to force Audrie to block you. She is a
child and should not have to make those decisi ons. I k11ow she looks grown up but she is a child
you would not until she was 18. The last time you contacted her she m issed 3

inside and cannot handle this emotionally. All her life she has presented symptoms of ADHD.
when the reality was that she su:ffel'S from an anxiety disorder. This is very hard on her. What
you see of her posts on Facebook is not the whole Audrie that we know and love and understand

I know your intentions are just to let her know you love he1. Your contact with her has effects
that reach further than what you or r could anticipate, and she is not ready for it. The one thing I

have learned about being a parent is that their needs always come before youi-s.
Michael

Lazarin September 12, 2012l1:43pm

Can someone please call me and let me know what happened to my daughter? That is the least
. She has a whole
you can do is let me say goodbye to Audrie, she deserves that
family including her brnther who is grieving in Az. I promise to be cordual/polite. This is my
olive branch reaching out.

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

EXHIBIT B

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CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG