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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kim Cramton, 

Plaintiff,

vs.

Grabbagreen Franchising, LLC, Eat Clean 

Holdings, LLC and Keely Newman,

Defendants.

 Case No. 2:17-cv-04663-PHX-DWL

 

JOINT FINAL PRETRIAL ORDER

Following is the Joint Proposed Final Pretrial Order to be considered at the Final 

Pretrial Conference in this case set for May 27, 2020, at 1:00 p.m.

A. TRIAL COUNSEL

Plaintiff:

Todd Feltus

Molly Rogers

KERCSMAR & FELTUS PLLC

7150 E. Camelback Road, Suite 285

Scottsdale, Arizona 85251

Tele: (480) 421-1001

tfeltus@kflawaz.com

cmr@kflawaz.com

Michelle R. Matheson

Emily D. Armstrong

MATHESON & MATHESON, P.L.C.

15300 North 90th Street, Suite 550

Scottsdale, Arizona 85260

Tele: (480) 889-8951

mmatheson@mathesonlegal.com

earmstrong@mathesonlegal.com

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Defendants:

Larry J. Cohen

Erin A. Hertzog

CRONUS LAW, PLLC

2601 East Thomas Road, Suite 235

Phoenix, Arizona 85016

Tele: (480) 467-3188

lcohen@cronuslaw.com

eah@cronuslaw.com

Kelli Newman (pro hac vice)

NEWMAN LAW, LLC

119 Tanglewood Drive

Glen Ellyn, Illinois 60137

Tele: (630) 403-6040

kelli@lawnewman.com

Counsel for Defendants Eat Clean 

Holdings, LLC and Keely Newman 

only

B. STATEMENT OF JURISDICTION

1. Jurisdiction in this case is based on 28 U.S.C. 1367.

2. Jurisdiction is not disputed.

C. STIPULATIONS AND UNDISPUTED FACTS AND LAW

1. The following material facts are admitted by the parties and require no 

proof:

a. Keely Newman (“Keely”) is a founder of non-defendant Gulf Girl Squared, 

Inc. (“GGS”).

b. In April 2013, GGS opened its first restaurant using the “Grabbagreen” trade 

name at 15688 N. Hayden Rd., #L129 Scottsdale AZ 85260 (“GG1”). 

c. In December 2013, GGS opened its second restaurant using the 

“Grabbagreen” trade name at 7366 E. Shea Scottsdale, AZ 85260 (“GG2”). 

d. In December 2014, GGS opened its third restaurant using the “Grabbagreen” 

trade name at 50 W. Jefferson, Suite 120 Phoenix, AZ 85003 (“GG3”).

e. Kim Cramton (“Cramton”) began working as the Regional Manager of GGS 

on September 29, 2014. 

f. At all relevant times, GGS was a franchisee of Grabbagreen Franchising, LLC 

(“GFL”).

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g. On October 24, 2016, Eat Clean Operations, LLC (“ECO”) was formed as a 

wholly-owned subsidiary of Eat Clean Holdings, LLC (“ECH”).

h. ECH was not a parent company to GGS. 

GFL

i. At all relevant times, GFL was an Arizona limited liability company.

j. GFL was formed to franchise the Grabbagreen restaurant concept. 

k. As a franchisor, GFL could not sell franchises until it had its first Franchise 

Disclosure Document (“FDD”).

l. GFL filed its first FDD April 3, 2015 (“First FDD”). 

m. At all relevant times, Cramton was employed by GFL.

ECH 

n. ECH was formed in Arizona on October 13, 2016 and at all relevant times 

was an Arizona limited liability company.

o. ECH acquired GFL and became the sole member owning 100% of GFL on 

October 27, 2016.

p. ECH had an operating agreement titled the ECH Restated Operating 

Agreement dated November 28, 2016 (the “Operating Agreement”). 

q. Cramton had no involvement in any capacity with ECO or ECH in 2014 or 

2015 because neither entity existed until October 2016.

2. The following material facts, although not admitted, will not be contested at 

trial by evidence to the contrary:

a. “Grabbagreen” is a brand name.

b. “Grabbagreen” is not the legal name of any entity that employed Cramton 

during the relevant period of this lawsuit.

Krowne / ECO

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c. In 2016, S&H Arizona I, LLC (“S&H”) was a franchisee of GFL building out 

its first location at 4727 E. Bell Rd. Phoenix, AZ 85032 (“GG51”). 

d. Cramton and Keely formed Krowne Enterprises, LLC (“Krowne”) for the 

purpose of taking over the GG51 location from S&H, completing the buildout and operating 

GG51 as a franchisee of GFL.

e. Keely owned 51% of Krowne and Cramton owned 49% of Krowne. 

f. After Krowne took over GG51, Keely paid $94,381 for the remaining 

construction and build out expenses, purchase equipment and open GG51.

g. After Krowne took over GG51, Cramton paid $66,527 for the remaining 

construction and build out expenses, purchase equipment and open GG51.

h. ECO did not exist at the time that Cramton paid $66,527 in buildout expenses 

for the buildout of GG51 or at the time Krowne opened GG51 for business.

i. Cramton did not deposit $66,527 into ECO’s bank account. 

GGS

j. At all relevant times, Cramton was employed by GGS and by GFL. The 

extent to which Cramton was employed by GGS and GFL is disputed by the parties

GFL

k. GFL sold its first franchise on May 29, 2015.

Kahala 

l. On August 15, 2017, Keely, in her capacity as a member of ECH with the 

authority provided to her as the majority member under § 5.1(h) of the Operating 

Agreement, provided a written offer to Kahala to sell the Grabbagreen brand to Kahala on 

the same terms as the Due North Deal.

m. August 22, 2017, Wuycheck sent an email to Keely confirming that Kahala 

was willing to consider the Due North Deal terms without exclusivity.

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n. on September 24, 2017 Cramton sent a letter dated September 22, 2017 to 

GFL stating in the regarding line “Resignation” and stating that Cramton “is resigning her 

position” with GFL “and its related entities effective September 25, 2017” (the “Resignation 

Letter”).

Due North Deal

o. A subsidiary of Due North Holdings, LLC (“Due North”) fully negotiated and 

agreed to purchase the Grabbagreen brand from ECH (“Due North Deal”).

p. The closing date of the Due North Deal was initially scheduled for the 

beginning of June 2017 but was delayed by Due North pending the resolution of its business 

issues.

q. The closing date for the Due North Deal was rescheduled a few times in June 

and July 2017. 

r. On August 14, 2017, GFL amended its 2017 FDD to disclose to potential 

franchisees that the Due North Deal was pending.

3. The following issues of law are uncontested and stipulated to by the 

parties:

a. To the extent applicable to this case, A.R.S. § 23-363(A) states: “employers 

shall pay employees no less than the minimum wage, which [is]: 1. $10 on and after January 

1, 2017.” The minimum wage for 2016 in Arizona was $8.05. 

https://www.azica.gov/content/commission-announces-arizona-minimum-wage-willremain-805-cy-2016

b. To the extent applicable to this case, A.R.S. § 23-362(A) states that an 

“”employee” means any person who is or was employed by an employer but does not 

include any person who is employed by a parent or a sibling, or who is employed performing 

babysitting services in the employer’s home on a casual basis.”

To the extent applicable to this case, A.R.S. § 23-362(B) states that an “"employer”

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includes any corporation, proprietorship, partnership, joint venture, limited liability 

company, trust, association, political subdivision of the state, individual or other entity 

acting directly or indirectly in the interest of an employer in relation to an employee, but 

does not include the state of Arizona, the United States, or a small business.” The Ninth 

Circuit’s “economic reality” test applies to determine whether an individual or entity 

constitutes an “employer,” considering “whether the alleged employer (1) had the power to 

hire and fire the employees, (2) supervised and controlled employee work schedules or 

conditions of employment, (3) determined the rate and method of payment, and (4) 

maintained employment records.” Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1324 

(9th Cir. 1991). Also, it is imperative that she actually exercised one or more of the four 

control factors listed in this test; mere ability to exercise control is insufficient. See Joint 

Employer Status Under the Fair Labor Standards Act (Final Rule), 85 FR 2820-01 (Jan.16, 

2020) (p. 2821 stating “the other person must actually exercise . . . one or more of the four 

control factors”) available at https://www.govinfo.gov/content/pkg/FR-2020-01-

16/pdf/2019-28343.pdf

c. A.R.S. § 23-362(D) states: ““Employ” includes to suffer or permit to work: 

whether a person is an independent contractor or an employee shall be determined according 

to the standards of the federal fair labor standards act, but the burden of proof shall be upon 

the party for whom the work is performed to show independent contractor status by clear 

and convincing evidence.”

d. A.R.S. § 23-362(E) states: ““Wage” means monetary compensation due to 

an employee by reason of employment, including an employee’s commissions, but not tips 

or gratuities.”

e. On-call time is compensable only when the employee is unable to use the 

time for her own purposes. If the employee can stay home, watch TV, go out to eat, visit 

family, the time the employee is on-call is not compensable. A.A.C. R20-5-1202(22); 29 

C.F.R. § 785-17; McAllister v. County of Sonoma, 30 F.3d 1174, 1180 (9th Cir. 1994). 

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Plaintiff disagrees that this issue of law is relevant as Plaintiff was never “on call.” This 

was not a doctors’ office. Plaintiff was only working when she was working.

f. In Arizona, every contract contains an implied covenant of good faith and fair 

dealing that requires that contracting parties “refrain from any action which would impair 

the benefits which the other had the right to expect from the contract or contractual 

relationship.” Rawlings v. Apodaca, 151 Ariz. 149, 153, 726 P.2d 585, 589 (1986). 

g. Arizona recognizes the tort of negligent misrepresentation as defined by 

RESTATEMENT (SECOND) OF TORTS § 552, which provides, in relevant part:

552. Information Negligently Supplied for the Guidance of Others

(1) One who, in the course of his business, profession or employment, or in any 

other transaction in which he has a pecuniary interest, supplies false information for the 

guidance of others in their business transactions, is subject to liability for pecuniary loss

caused to them by their justifiable reliance upon the information, if he fails to exercise 

reasonable care or competence in obtaining or communicating the information.

(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is 

limited to loss suffered:

(a) by the person or one of a limited group of persons for whose benefit and 

guidance he intends to supply the information or knows that the recipient intends 

to supply it; and 

(b) through reliance upon it in a transaction that he intends the information to 

influence or knows that the recipient so intends or in a substantially similar 

transaction.

Liability for negligent misrepresentation is narrow in scope because it is premised 

on the reasonable expectations of a foreseeable user supplied in connection with commercial 

transactions. RESTATEMENT (SECOND) OF TORTS § 552 comment a. St. Joseph’s Hospital 

and Medical Center v. Reserve Life Ins. Co., 154 Ariz. 307, 312 (1987). 

h. Fraud requires (1) a representation; (2) its falsity; (3) its materiality; (4) the 

speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be 

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acted upon by and in the manner reasonably contemplated; (6) the hearer’s ignorance of its 

falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and 

proximate injury. Services Holding Co., Inc. v. Transamerica Ins., 180 Ariz. 198, 208, 883 

P.2d 435, 445 (App. 1994). Fraud is “never presumed,” nor “can it be found to exist on a 

mere suspicion as to the possibilities thereof.” Services Holding Co., Inc. v. Transamerica 

Ins., 180 Ariz. 198, 208, 883 P.2d 435, 445 (App. 1994); see also, Rice v. Tissaw, 57 Ariz. 

230 (1940). Each of its elements must be proved by clear and convincing evidence. Lehman 

v. Whitehead, 403 P.2d 8, 10 (Ariz. App. 1965)(“A failure to prove any one of the elements 

by proof which is clear and convincing would be fatal to any case sounding in fraud.”). 

Thus, “[f]raud may never be established by doubtful, vague, speculative, or inconclusive 

evidence, and always the proof must be sufficient to overcome the initial presumption in 

favor of honesty.” In re McDonnell’s Estate, 179 P.2d 238, 241 (Ariz. 1947).

D. CONTESTED ISSUES AND LAW

1. The following are the material issues of fact to be tried and decided:

a. Did Cramton receive minimum wage by reason of her employment from

GFL in 2016.

Plaintiff: Plaintiff contends she did not receive minimum wages from GFL or its 

authorized agent Keely Newman from December 11, 2016 through her separation on 

September 24, 2017. Plaintiff contends the payments she received from Defendants during 

this time were a pay down on her promissory note as well as payments for her car and 

insurance. Plaintiff contends none of the payments were minimum wages. 

Defendants’ Contentions (GFL and Keely): Nothing under this factual issue 

pertains to 2017 so Cramton’s statement above is inapplicable here aside from the period 

of December 12, 2016 to December 31, 2016. No Defendant had a promissory note with 

Cramton. Specifically, GFL had no promissory note with Cramton to pay down. 

Therefore, no monetary compensation paid by GFL to Cramton related to a payment for 

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any reason other than her labor and services to GFL. In 2016, GFL paid Cramton 

$176,537.451in taxable wages for her part time employment with GFL. That amount alone

is substantially in excess of the Arizona minimum wage requirements in 2016 without even 

considering distributions from ECH for service payments as provided under the Operating 

Agreement. Indeed, Cramton was paid so much money, she was in the top 5% of all earners 

in Arizona in 2016 based on publicly available statistics and yet, she baselessly claims that 

none of the payments were minimum wages. 

Cramton had shoulder rotator cuff surgery in December 2016. GFL paid an 

additional amount in non-taxable wages of $4,350 to her health savings account (“HSA”) 

for Cramton to apply toward the deductible and other out of pocket expenses of her 

shoulder surgery shown in box 12 of her 2016 W-2. Cramton also received $8,949 from 

GFL for her to contribute to her individual SEP retirement account and other payments in 

December of more than $9,500. At more than $3,400 per workweek, Cramton would have 

needed to work more than 422 hours for her average weekly pay to qualify as less than 

$8.05 per hour. This is not possible especially considering that Cramton also worked part 

time for GGS, Krowne and RevSolar. Cramton received no W-2 from Keely in 2016 or 

any other year because Keely was not Cramton’s employer and Cramton was not Keely’s 

employee at any relevant time in this case. The foregoing should end the inquiry in relation 

to 2016.

Cramton’s working time was divided between GFL, non-defendant GGS and nondefendant Krowne. Krowne operated GG51 through December 31, 2016. RevSolar is an 

unrelated business owned by Cramton during both 2016 and 2017 with respect to which 

Cramton spent time working and received taxable income as activity at RevSolar picked 

up in 2016. At all relevant times, Cramton understood that reclassifying income as non1 Cramton’s gross wages in 2016 were $180,887.45. Cramton’s taxable wages were 

$176,537.45. The difference is the pre-tax health insurance premium subsidies paid by GFL 

for Cramton.

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taxable principal repayments on a loan was one way she could try to avoid state and federal 

income tax obligations on her income from RevSolar. 

On approximately November 19, 2016, GGS experienced a cash flow crisis that 

continued for several months. GGS had to borrow funds to make payroll. Cramton’s daily 

priorities by December 2016 primarily involved her efforts at GGS stores to improve sales. 

Cramton was a 25% owner of GGS in December 2016.2 Time spent as a shareholder of 

GGS addressing its cash flow crisis is time spent as an owner of GGS and is not 

compensable by GFL. A.R.S. § 23-362 defines “wages” for purposes of the Arizona 

Minimum Wage Act (§§ 23-362 – 23-365) to include all monetary compensation due to an 

employee by reason of employment, including an employee’s commissions, but not tips or 

gratuities. This definition includes employer paid health insurance premiums, employer 

monthly payments for her car, and employer paid tax gross ups – all are forms of monetary 

compensation due an employee by reason of employment and Cramton has cited no basis 

whatsoever to claim otherwise. Monetary compensation means cash or its equivalent due to 

employee by reason of employment. A.C.C. R20-1202. Cramton has never alleged or 

explained in her mandatory initial disclosure (“MIDP”) responses how $180,887.45 in 

gross wages fails to meet the minimum wage laws in Arizona for GFL. See, Dkt. 294, Ex. 

1, at 33:9-15; Dkt. 175, at 2:28-3:10. In relation to December 2016 specifically, Cramton 

has also never alleged or explained how the payments GFL made to her in December fail 

to meet applicable minimum wage requirements especially considering that her claimed 

damages for December 2016 are only $1,288 (160 hours x $8.05) and the payments she 

received exceeded $9,500. All of the monetary compensation she received was paid by 

GFL by reason of Cramton’s employment. In addition, courts have rejected minimum 

wage claims by officers where their salary, when averaged across their total time worked, 

2 From October 7, 2016 through September 14, 2017, Cramton owned 25% of GGS 

and Keely owned 75% of GGS.

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still payed them above minimum wage. See, Adair v. City of Kirkland, 185 F.3d 1055, 

1063 (9th Cir. 1999), citing, Hensley v. MacMillan Bloedel Containers, Inc., 786 F.2d 353, 

357 (8th Cir. 1986). With an average workweek of more than $3,400 in pay, Cramton 

received more than the minimum wage. Further, parties may legally contract around the 

default payment requirements of A.R.S. § 23-351. Orfaly v. Tucson Symphony Socy., 99 

P.2d 1033-34 (Ariz. App. 2004). Such an agreement to alter when wage payments become 

due and payable is legally permissible. Id. It is inconsequential whether Cramton received 

pay every two weeks or she agreed to vary the timing.

Cramton arrived at her purported 160 hours of unpaid work by improperly including 

her time: (i) worked at GGS, (ii) worked at Krowne, (iii) worked for RevSolar, (iv) spent

driving to and from Las Vegas (approximately 10 hour drive time round trip), (v) spent in 

Las Vegas, (vi) spent off of work for shoulder rotator cuff surgery, (vii) spent at home 

recovering from that surgery, (viii) spent at physical therapy appointments for her shoulder

after her time off to recover, (ix) spent in personal activities, including without limitation, 

getting a haircut, poker games once per week, car shopping, sitting at a car dealership to 

buy a new car, hanging out with family showing off the new car, eating dinner, serving as 

“baby watchers” for Adrianne Savone’s baby, laying around at 2pm watching the food 

channel and visiting Adrianne Savone, for a few examples, and (x) off during the holidays. 

In addition, for the month of December, GFL had no franchise sales close, GFL had no 

work on its FDD, and GFL had no discovery days with any potential franchisees. With all 

of the time in December 2016 that Cramton spent in activities that are non-compensable 

by GFL, Cramton’s claim under Count IV is without merit and she is not entitled to any 

additional minimum wages and suffered no compensable damages under A.R.S. § 23-363 

(“Arizona Minimum Wage Act”), multiple damages or is entitled to attorneys’ fees in 2016.

In her first deposition, Cramton falsely testified under oath that she was not, or did 

not know, that she was an employee of GGS at all relevant times to hide her inflated hours 

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under Count IV. In her second deposition, Cramton admitted she was an employee of GGS 

in 2017 admitting “I don’t know if I could say it was more than 50 or less than 50” percent 

of her time spent in GGS in 2017. Cramton admitted she included GGS hours in her 

calculation in the Complaint. Cramton’s credibility is easily attacked given that her 

employment and several other facts about the structure of the entities is set out plain as day 

in GFL’s franchise disclosure document (“FDD”). GFL issued a total of 10 FDDs from 

April 3, 2015 through April 17, 2017. All 10 of GFL’s FDDs state in the “Business 

Experience” section that Cramton’s title at the respective time was “Vice President of 

Operations” for GGS. All 10 of GFL’s FDDs state in the “Business Experience” section 

that Cramton’s title at the respective time was “Vice President of Franchise Development” 

for GFL. All 10 of GFL’s FDDs state that GGS, GFL and ECH were affiliates at all 

relevant times to this lawsuit. In 2015, 2016 and 2017, Cramton certified under penalty of 

law that she read and understood all of the FDDs and certified the accuracy of the content 

of all of the FDDs. In 2017, Cramton completed only two funded sales with new 

franchisees of GFL in 2017. Cramton did not report to work after September 15, 2017 at 

GFL and has not returned to work at GFL or any of its related entities through the present.

b. Did Cramton receive minimum wage by reason of her employment from

GFL in 2017. 

Plaintiff: Plaintiff contends she did not receive minimum wages from GFL or Keely 

Newman from December 11, 2016 through her separation on September 24, 2017. Plaintiff 

contends the payments she received from Defendants during this time were a pay down on 

her promissory note as well as payments for her car and insurance. Plaintiff contends none 

of the payments were minimum wages. 

Defendants’ Contentions (GFL and Keely): Cramton was not an employee of 

Keely. Nothing under this factual issue pertains to 2016 so Cramton’s statement above in 

relation to 2016 is inapplicable here. No Defendant had a promissory note with Cramton. 

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Specifically, GFL had no promissory note with Cramton to pay down. Therefore, no 

monetary compensation paid by GFL to Cramton related to anything but her labor and 

services to GFL. At all times, Cramton was a part time employee of GFL and a part time 

employee of GGS. In 2017, Cramton made payments to herself by accessing the GFL bank 

accounts to transfer payments to her own bank account. The total payments made to, or on 

behalf of, Cramton totaled $70,140.89. Of that amount, Cramton was paid $25,000 by 

GFL by reason of her employment as wages for her part time labor and reported on her 

2017 W-2 Form. Cramton did not receive a W-2 from Keely in 2017 because Keely was 

not her employer. A.R.S. § 23-362 defines “wages” for purposes of the Arizona Minimum 

Wage Act (§§ 23-362 – 23-365) to include all monetary compensation due to an employee by 

reason of employment, including an employee’s commissions, but not tips or gratuities. This 

definition includes employer paid health insurance premiums, employer monthly payments for 

her car, and employer paid tax gross ups – all are forms of monetary compensation due an 

employee by reason of employment and Cramton has cited no basis whatsoever to claim 

otherwise.

3

 These additional wages under the Arizona Minimum Wage Act include the 

monthly payments of $1,016 (a total of $9,144 in 2017) in GFL paid health insurance premium 

payments, monthly payments of $548.10 (a total of $4,932.90 in 2017) in GFL payments for 

Cramton’s car and $10,880.50 in GFL paid gross ups for Cramton employment related tax 

liabilities, including federal withholding, Arizona withholding, and the employee portion of 

Social Security and Medicare taxes. The total of these additional wage payments for purposes 

of the Arizona Minimum Wage Act is an additional $24,957.40. All of these additional 

monetary payments were made to Cramton by reason of her employment with GFL. In 

addition, any award of damages under Counts VII, IX and X (no damages should be awarded) 

would entitle GFL to include the full cash value of Cramton’s equity compensation as wages 

3 The Arizona Minimum Wage Act was enacted by Arizona voters who approved an 

initiative in the November 2006 election. As an initiative approved by the voters, the law cannot 

be amended by the Legislature except to further its purpose.

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under the Arizona Minimum Wage Act in 2017 as well. To allow damages under Count IV 

(which the Court should not), on the one hand, and then also allow any recovery under Count 

VII, IX or X (which the Court should not), on the other hand, would result in a quadruple 

recovery on minimum wages paid to Cramton. There are no facts or law that allow such 

multiple or duplicative recovery.

Cramton would have needed to work well over 82 hours per week for GFL alone 

before she would dip below the minimum wage in 2017. This is impossible because 

Cramton worked part time for GGS and spent significant time as a shareholder of GGS in 

responding to its cash flow crisis and in selling GGS to Black & Furr, LLC. Further, time 

spent as a member of GFL or a member of the board of managers for GFL in budgeting 

and in selling the Grabbagreen brand is not compensable by GFL as if Cramton was 

working for the company as an employee. Worse, the written evidence in this case shows 

she worked for GGS more than 50% of her time in 2017. Cramton’s total claim of damages 

under Count IV is for $14,400 for 2017 based on a claim she worked 40 hours per week 

and her damages calculation stated in her MIDP which is less than the $25,000 in wages 

reported on Cramton’s W-2 without even adding the rest of the monetary compensation 

Cramton was paid (an additional $24,957.40). Cramton then changed her purported 

damages calculation after fact discovery closed by saying she worked 60-80 hours per week 

for a total of $18,883 in damages. This undisclosed claim for damages should be barred 

by Rule 37 as described below and Defendants were prejudiced by the fact they were 

unable to conduct full discovery such as obtaining Cramton’s credit card statements to 

show all of her non-compensable activities improperly included in the hours she claims she 

was working for GFL or Keely. Even this dubious amount is below the wages reported on 

her Form W-2 and is less than the additional monetary compensation Cramton received 

from GFL. Cramton suffered no compensable damages under Count IV. 

The $25,000 paid by GFL to Cramton in 2017 and reported on her Form W-2 were

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the commissions Cramton received for her labor in making sales to two new franchisees

for which GFL received the applicable franchise fee. The first new franchisee sale Cramton 

was paid on in 2017 was made to Green Leap LLC owned and managed by Troy Payne 

located in Texas. This franchisee entered into a Franchise Agreement to purchase one 

franchise with GFL on April 6, 2017 and paid the franchise fee to GFL. This sale resulted 

in a payment to Cramton of $5,000 which was transferred from the GFL bank account to 

Cramton’s bank account 4 days later on April 10, 2017. This payment to Cramton directly 

ties to the franchise sale to Green Leap LLC and is a commission payment for her labor in 

making this sale. The second sale Cramton was paid on in 2017 was made to Green & Go, 

LLC owned and managed by Michael Raymond located in Michigan. This franchisee 

entered into a Franchise Agreement to purchase ten franchises with GFL on September 1, 

2017 and paid the franchise fee. This sale resulted in a payment to Cramton of $20,000 

which was transferred from the GFL bank account to Cramton’s bank account 4 days later 

on September 5, 2017. This payment to Cramton directly ties to the franchise sale to Green 

& Go, LLC and is a commission payment for her labor in making this sale. 

The two payments made to Cramton totaling $25,000 were properly reported on

Cramton’s 2017 W-2 Form from GFL. GFL and its tax matters manager had the authority 

to determine the proper tax treatment and classification of GFL’s payments under the law. 

Cramton cannot dispute who had this authority because the parol evidence rule bars her

from offering extrinsic evidence to controvert the unambiguous terms of the GFL operating 

agreement. This Court observed in its December 2019 Order that both GFL and Keely 

would be entitled to summary judgment on Count IV if the $25,000 payment made by GFL 

to Cramton in 2017 constituted wages for her labor or services. (Dkt. 247, at 45:16-17). 

Even without considering the commission payments Cramton received, she also was paid 

$9,144 by reason of her employment toward her health insurance premiums, $4,932.90 by 

reason of her employment as payments for her car and $10,880.50 in employment related 

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tax gross-ups for a total of $24,957.40 in additional monetary compensation without even 

considering distributions from ECH for service payments as provided under the Operating 

Agreement. This additional monetary compensation by itself exceeds the damages 

Cramton claimed even at the improperly and untimely inflated amount of $18,883. The 

evidence in the case makes it clear that Cramton is not entitled to additional minimum wage 

payments.

The only issue Cramton raises under Count IV is not whether she received payments

well above the minimum wage for 2017 (she did) nor is it whether those payments were 

for her labor by reason of her employment, which should be the end of the inquiry. The 

gravamen of Cramton’s claim is that she thinks the $25,000 in payments reported on her 

W-2 that she actually received from GFL totaling well above the minimum wage (without 

even considering the rest of her monetary compensation) should be classified and labelled

differently. She thinks that the $25,000 in GFL wage payments shown on her W-2 should 

be classified and labelled as if they were ECO’s payments on its promissory note even 

though it is irrefutable that GFL made the payments and irrefutable that GFL had no 

obligation to make any payment on any ECO obligation. It is also irrefutable that ECO 

had insufficient revenues to make any payments on its promissory note and, in fact, did not 

make any such payments. It is not up to Cramton to decide, whether as an owner of ECH 

or as an employee of GFL, how GFL labelled, classified or reported the commission 

payments on the two franchisee sales. Cramton has no right, nor even alleged a right, to 

compel GFL to classify or label and report on its wage payments in a manner that suits her

or allows her to try to avoid taxes. 

To support her argument that the $25,000 in GFL wage payments shown on her W2 should be labelled and treated as though they were non-taxable payments made by ECO 

on ECO’s debt, Cramton contends that a GFL board consent is an agreement that wages 

would not be paid going forward in 2017 at all or under any circumstances – this is simply 

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not true nor does it reflect what Cramton and Keely actually did. This is the same consent 

referencing the $8,949 payment for Cramton’s individual SEP retirement account 

contribution (conveniently ignored by her throughout this lawsuit). The law in Arizona is 

clear, parties may legally contract around the default payment requirements of A.R.S. § 

23-351. Orfaly, at 1033-34. An agreement to alter when wage payments become due and 

payable is legally permissible and it is inconsequential whether Cramton received pay 

every two weeks or whether she agreed to vary the timing of her payments. Id. 

Cramton and Keely agreed that for 2017 they would return to a commission 

structure similar to the commission structure they had in place for 2015 – the year GFL 

started doing business. Like most start-up companies, GFL had cash flow concerns from 

year to year. In 2016, regular monthly salary payments were made so that Cramton could 

obtain financing on the purchase of her second vacation home and for her new car and for 

her spouse, Laura McCormack’s, new car – all acquired by Cramton in 2016 and all in the 

year of GFL’s highest number of new franchisee sales. In January 2017, Cramton and 

Keely agreed to return to a commission structure similar to 2015. 

Cramton requested that GFL make certain payments to her in 2017 as if ECO made 

the payment on its promissory note obligation so that Cramton could avoid paying taxes

on most of her income. GFL’s in-house accountant, Teresa Mills (“Mills”), advised both 

Cramton and Keely that GFL could not label the payments it made as if they were ECO 

payments on ECO’s promissory note. GFL’s tax and audit advisors reviewed interim 

accounting records and recommended adjusting entries to finalize GFL’s books and records 

each year. Given the advice of Mills, Keely went along with Cramton’s request but only 

contingent upon the approval of GFL’s tax and audit advisors at the end of the year. In 

early September 2017, Cramton informed Keely that she wanted her commissions paid as 

wages and she wanted the full amount of her ECO promissory note restored. Cramton

changed her mind and wanted the accounting entries reversed. In addition, GFL’s tax and 

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audit advisors did not approve the classification of GFL’s taxable payments as if they were 

non-taxable ECO payments on ECO’s promissory note and required corrections to GFL’s 

accounting records.

The payments from GFL at issue were classified by the tax matters manager as 

wages based on the tax and auditor advisor’s advice and Cramton’s own request that the 

classification of payments be reversed. GFL made a total of $70,140.89 in taxable 

payments to Cramton in 2017, the tax matters manager has the authority under the

operating agreement to determine the classification of payments and the proper tax

reporting and obligations of GFL with respect to those payments. Under Arizona law, the 

parol evidence rule excludes the admission of evidence that varies from or contradicts the 

written terms of a contract. Where the language is clear and unambiguous, that language 

controls, and “it is not within the province of the court to alter, revise, modify, extend, 

rewrite or remake an agreement.” Shattuck, at 588. The language of the operating 

agreement is clear and unambiguous that the tax matters manager has the discretion to 

determine the character or classification of payments made to members. As such, Cramton 

does not have a right under the operating agreement to contradict the determinations made 

by the tax matters manager in contravention of the unambiguous provisions of the operating 

agreement. Even assuming an employee of a company could possibly have a valid right to 

contradict the employing company’s classifications of payments for the sole purpose of 

ginning up a minimum wage claim as Cramton has done for three years and counting, the 

fact is that Cramton also received $24,957.40 in other monetary compensation and 

distributions that were for service payments that count as monetary compensation for 

purposes of the Arizona Minimum Wage Act making it clear that GFL more than met the 

requirements of that act for 2017.

Cramton was an owner responsible for the payment of her own wages and other 

monetary compensation and distributions for service payments. Cramton’s damages of 

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$18,883 are based on her assertion that she worked 60-80 hours per week. Cramton never 

asserted that she worked 60-80 hours per week in her MIDP responses. See, Dkt. 294, Ex. 

1, at 33:9-15; Dkt. 175, at 2:28-3:10. If the “fact” that Cramton worked 60-80 hours per 

week existed in 2017, it could have been alleged in her Complaint, her Amended Complaint 

or at least asserted in her MIDP response. The damages asserted in this case were not 

mentioned anywhere during fact discovery. Instead, the damages under Count IV were 

improperly claimed by Cramton for the first time in her motion for summary judgment. 

(Dkt. 142, at 12:5-7 & fn 12). The Defendants were prejudiced by Cramton raising a new 

claim for damages after the close of fact discovery during summary judgment pleadings. 

Cramton was required to provide a computation of each category of damages claimed by 

her and a description of the documents or other evidentiary material on which it was based, 

including materials bearing on the nature and extent of the injuries suffered in her 

mandatory disclosures. See, General Order 17-08 (B)(5). Cramton cannot present 

evidence at trial based on claims of damages and damage computations not alleged in her 

Amended Complaint and not disclosed in her MIDP. Rule 37 bars a party from introducing 

an undisclosed claim or theory of damages at trial unless they can show the failure to 

disclose was substantially justified or harmless. See, Fed. R. Civ. P. 37(b)(2), (c)(1); See 

also, Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). 

Cramton raised a damages calculation and amount of damages substantially increased over

the amount disclosed in fact discovery and she did so for the very first time in summary 

judgment pleadings two years into this lawsuit and long after fact discovery closed –

namely that she claims that she worked 60-80 hours per week instead of the 40 hours per 

week provided in her MIDP. Cramton has made no argument that even suggests her 

untimely disclosures of her damages and computation is justified or harmless. Cramton 

should not be permitted to assert damages under Count IV based on a computation that 

exceeds the 40 hours per week and the $14,400 calculation disclosed in her MIDP.

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Cramton had, and continues to have no reasonable basis to assert Count IV with 

respect to 2017 against GFL or Keely. Accordingly, Cramton is not entitled to any 

damages (including multiple damages) or attorneys’ fees under A.R.S. § 23-363.

By way of background to ECO, S&H was financially unable to complete the 

buildout of GG51. Krowne and S&H entered into an agreement pursuant to which S&H 

assigned its lease for GG51 to Krowne. In exchange, Krowne executed a promissory note 

promising to pay S&H $79,946 reflecting S&H’s investment in the construction and build 

out of GG51, but only if Krowne could generate sufficient revenue from sales at GG51 to 

pay all of its operating expenses arising from the operation of GG51 and sufficient cash 

reserves to pay all of its taxes, capital expenditures and other operating needs. Once open, 

GG51 never generated sufficient revenues to cover all of its operating needs and provide 

any return of capital investment in the buildout to S&H, Cramton or Keely regardless of 

whether S&H owned it, Krowne owned it or ECO owned it – it underperformed regardless. 

ECO was formed for the purpose of acquiring GG2. GG2 was an underperforming 

restaurant location just like GG51. GG2 ultimately was sold by Cramton and Keely to 

Black & Furr, LLC in September 2017 for $1. Black & Furr, LLC closed GG2 within 6 

months of its acquisition. Instead of acquiring GG2, on October 27, 2017, ECO acquired 

the assets of Krowne and agreed to relieve both Cramton and Keely of their obligations to 

provide the ongoing capital contributions needed to keep GG51 afloat. GG51 operated 

primarily at a loss. In the acquisition, ECO entered into a promissory note with Cramton 

and with Keely similar to the one Krowne provided to S&H. Like Krowne, ECO would 

not pay on its promissory notes unless GG51 generated sufficient revenue from sales at 

GG51 to pay all of its operating expenses arising from its operation, sufficient cash reserves 

to pay all of its taxes, capital expenditures and other operating needs. ECO, like Krowne, 

never generated sufficient revenues at GG51 to pay all of its operating expenses, to 

establish sufficient cash reserves to pay its taxes, capital expenditures and cover other 

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operating needs to make payments to S&H, Cramton or Keely. Cramton did not advance 

any funds to, or on behalf of, ECO and did not deposit any funds in ECO’s bank account. 

If ECO had not absorbed the carrying costs of GG51 when it did, GG51 would have shut 

down shortly thereafter in early 2017 and both Cramton and Keely would have lost the 

opportunity to try to make GG51 profitable.

c. How many hours Cramton claims she worked for GFL were actually 

worked for GGS or were not worked at all.

Plaintiff: the jury will determine, based on the evidence, the hours at trial. Plaintiff 

has included a demonstrative exhibit which represents the hours that she estimates she 

worked and which will be supported by her testimony and the exhibits. All other witnesses 

lack the foundation for “filings” that were not authored by Plaintiff herself; the best source 

of evidence.

Defendants’ Contentions (GFL and Keely): Cramton had an ownership interest in, 

and worked for, multiple companies at all relevant times. Her working time was divided 

between GFL, non-defendant GGS and non-party RevSolar. Cramton claims she is owed 

“approximately $18,833”4in unpaid minimum wages for 2017. This is only an estimate 

because Cramton does not know how many hours she worked for GFL. When calculating 

her damages under Count IV, she waited until approximately January 2019 to do the 

estimate and then guessed off the top of her head using a blank calendar. Cramton failed 

to make any record whatsoever of the hours she devoted to each separate business venture

in 2017. She failed to clock in or out of the time tracking system used with other Arizona 

employees. She was responsible for ensuring that Arizona employees used the time 

tracking system for hours worked. She failed to provide an accounting of her time for 

RevSolar. If fact, she testified under oath that she has no idea where her body was located 

4 See section 1b., Cramton’s damages under Count IV should be limited under Rule 

37 to a total of the $15,688 for both 2016 and 2017 she disclosed in her MIDP.

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while she was working in 2017. Worse, to prevent GFL from finding out what she actually 

was doing in 2017, she improperly stole data from GFL’s computer, iPhone and iCloud 

account and then removed the operating system and deleted the data from the computer 

and iPhone. Only after GFL’s attorneys raised the issue of spoliation did Cramton even 

admit that she stole a copy of the computer hard drive which contained some of the data 

she tried to destroy. When Cramton calculated her purported hours under Count IV in 

January 2019, she failed to even look at the data she tried to destroy but then admitted she 

stole from GFL’s computer to use that data to reminder herself as to where her body was

located on a day to day basis in 2017. 

Evidence stolen from GFL and then recovered in this case demonstrates that more 

than 50% of the hours during the relevant period claimed by Cramton (a total of 1,880 

hours which should be limited to 1,440 hours disclosed in her MIDP) were hours worked 

for GGS alone. She does not know how many of the 1,880 hours claimed under Count IV 

are hours actually worked for GGS and it could be more than 50%. She testified that she 

included her time spent working at GGS because she believes GGS is a defendant – it is 

not. But because Cramton, an owner, failed to record her own actual work hours for GFL 

(and did so in relation to GGS too) and then when accessing GFL’s bank accounts 

transferred wages to herself that she now claims were insufficient to meet the minimum 

wage, she thinks she should be permitted to recover damages against others for her very 

own actions and failures. 

In addition, Cramton included in her hours calculations time spent engaged in 

personal activities that are not compensable under Arizona law, including without 

limitation, time spent texting and talking on her phone with her friends, family, RevSolar 

business partners and her lawyers, time she spent hanging out at Adrianne Savone’s house, 

playing poker, in poker tournaments, time at her second vacation home, regularly driving 

to and from Las Vegas to gamble, and in other personal activities she improperly included 

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in her hours calculation under Count IV. Cramton block billed her personal time under 

Count IV despite the fact she knows she was not at work and that on-call time, if any, is 

not compensable because she used her personal time for her own purposes. If the employee 

can stay home, watch TV, go out to eat, visit family like Adrianne Savone three nights per 

week and hang out, the time the employee is on-call is not compensable – and that is even 

assuming she even received any momentary calls, texts or emails while hanging out in her 

personal activities. AZ Admin. Code R20-5-1202(22); 29 C.F.R. § 785-17; McAllister, at

1180. 

 The damages Cramton claimed in 2017 are less than the wages she was paid and 

with at least half of what she did claim based on time that is non-compensable by GFL or 

Keely, Count IV is without merit.

d. Whether Keely was Cramton’s “employer” under A.R.S. §23-362(B).

Plaintiff: Plaintiff claims that Keely was Cramton’s employer under A.R.S. §23-

362 because she was acting “directly or indirectly in the interest of an employer [here GFL] 

in relation to an employee,” Ms. Cramton. Keely Newman was an agent of GFL. Keely 

directed Plaintiff’s tasks and governed over her in a micromanagement fashion. 

Defendant’s Contentions (Keely): Cramton did not qualify as, and was not, an employee 

of Keely. Cramton was an owner and owners, particularly those in closely held companies, 

do not qualify as employees. Wheeler v. Hurdman, 825 F.2d 257, 277 (10th Cir. 1987), 

cert. denied, 108 S.Ct. 503 (1987)(general partner of an accounting firm was not an 

“employee” in FLSA action). See also Graves v. Women’s Prof. Rodeo Ass’n, Inc., 907 

F.2d 71, 72-73 (8th Cir. 1990). Cramton was an owner who accessed GFL bank accounts 

as an owner, had economic control over her own wages and made wage payments to 

herself. Cramton did not qualify as an “employee” of Keely. Cramton never received a 

W-2 from Keely in any year because Keely was never Cramton’s employer and 

specifically, Keely was not Cramton’s “employer” under A.R.S. §23-362(B) in December 

2016 or at any time in 2017.

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Cramton cannot carry her burden of proving that Keely was her “employer”. 

Cramton was responsible as an owner for her own activities, work schedule, work 

conditions, capital contributions to ECH to fund wages, her method of payment, making 

payments to herself, oversight of employees in Arizona and she maintained all Arizona 

employment records. Cramton had the power to hire and fire employees in Arizona and 

set their pay. Cramton was responsible for implementing company policies in Arizona, 

ensuring all employees clocked in and out of Revel (employee timekeeping system) and 

submitting all employee hours to Mills for payroll processing. Cramton had access to, and 

was a company owner and signer on, GFL’s bank accounts and made payments from GFL’s 

bank account to herself for her wage payments for labor she provided to GFL. Keely did 

not track Cramton’s daily employment activities, work schedule, daily working 

environment or conditions and other circumstances while in a different state because she 

could not oversee those things from California or Florida. Cramton cannot establish that 

Keely was her “employer” and cannot establish that she was not paid minimum wages by 

GFL in 2016 or 2017. 

Case law interpreting the meaning of “employer” under the FLSA controls because 

the FLSA and A.R.S. §23-362 define the term in similar ways and no case law specifically 

under A.R.S. §23-362 addresses the issue. Where an individual exercises ‘control over the 

nature and structure of the employment relationship,’ or ‘economic control’ over the 

relationship, that individual is an employer within the meaning of the FLSA. Boucher v. 

Shaw, 572 F.3d 1087, 1091 (9th Cir. 2009). Keely also does not qualify as Cramton’s 

employer under the Ninth Circuit’s “economic reality test” which considers several factors 

including that Cramton supervised and controlled employee work schedules or conditions 

of employment in Arizona, Cramton determined the rate and method of payment for 

employees in Arizona, and Cramton maintained employment records in Arizona. Lambert 

v. Ackerley, 180 F.3d 997, 1011-12 (9th Cir. 1999). Cramton was an owner. None of these 

factors were handled by Keely. Accordingly, Keely was not Cramton’s employer under 

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this analysis either. 

e. Whether Cramton was an “employer” under A.R.S. §23-362(B).

Plaintiff: As a minority owner and individual subject to the control of Keely Newman 

as an agent of Defendants, Plaintiff was not an “employer” of herself. Otherwise she would 

have paid herself. 

Defendant’s Contentions (Keely): 

Cramton did pay herself. Cramton accessed GFL’s bank account and paid herself. 

Keely did not pay her – she paid herself. Cramton was an owner responsible for all of her 

daily employment activities, work schedule, working conditions in Arizona, method of 

payment, making payments to herself and maintenance of all Arizona employment records. 

Keely lived and worked in California (and then Florida after moving) and made only a few 

brief trips to Arizona primarily in the first quarter of 2017. Keely did not track Cramton’s 

daily employment activities, work schedule, daily working environment or conditions and 

other circumstances while she was in different state. To the extent Cramton is deemed to 

be an employee despite not qualifying as such, she was the employer who controlled her 

work arrangement and conditions, including without limitation, the fact that she had access 

to, and was a company owner and signer on, GFL’s bank accounts and made her own wage 

payments to herself from GFL’s bank accounts.

Cramton qualifies as an “employer” under the Ninth Circuit’s “economic reality 

test” which considers whether Cramton supervised and controlled employee work 

schedules or conditions of employment, determined the rate and method of payment, and 

maintained employment records. Lambert, at 1011-12. Cramton was responsible for all 

activities in Arizona and she meets the economic reality test. As an owner, she was an 

owner responsible for her own wage payments, accessed GFL bank accounts and made 

wage payments to herself. As an owner and her own employer responsible for her own 

wage payments, Cramton is responsible for her own acts or failures to act in relation to 

recording her own hours and her own wage payments. As an employer and the owner

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responsible for all human resources matters in Arizona, Cramton was responsible for 

maintaining employment records for all other employees in Arizona and herself, and 

responsible for ensuring that applicable minimum wage payments were made to herself. 

As such, Cramton cannot prevail against GFL or Keely. 

f. Whether Cramton was an “employee” under A.R.S. § 23-362(A).

Plaintiff: Plaintiff contends that at all times she was an “employee” of GFL and Keely 

(via the definition of employer) under A.R.S. §23-362(A) and (D). She was forced to work 

and subordinate to Keely Newman at all times. Federal decisions have determined that the 

term "employee" is to be broadly construed. Salinas v. Commercial Interiors, Inc., 848 F.3d 

125, 133 (4th Cir. 2017). "[I]n determining whether a worker is an employee covered by the 

FLSA, a court considers the 'economic realities' of the relationship between the worker and 

the putative employer . . . ." Id. at 150 (emphasis omitted). Courts consider a number of 

factors and examine the totality of the circumstances in analyzing employee status. Id. "The 

focal point is whether the worker is economically dependent on the business to which he 

renders service or is, as a matter of economic [reality], in business for himself." Id. at 150 

(alteration in original) (quotation marks omitted).

"The determination of employee status is very fact intensive," Herman v. Express 

Sixty-Minutes Delivery Serv., 161 F.3d 299, 305 (5th Cir. 1998), and "a person's title alone 

should not be dispositive in the analysis[,]" Harris v. Universal Contr., LLC, No. 2:13-CV00253 DS, 2014 U.S. Dist. LEXIS 81105, at *5 (D. Utah June 12, 2014). In Harris, the 

district court squarely addressed the issue of whether a member of a limited liability 

company can also be an "employee" of that company. After a fact-intensive inquiry, the 

court granted summary judgment in favor of plaintiff on his FLSA claim, concluding that 

the members were subject to the company's control and, thus, were "employees" as 

defined by the FLSA. Id. at *13.

Likewise, in Kehler v. Albert Anderson, Inc., No. 16-5318 (JBS/KMW), 2017 U.S. 

Dist. LEXIS 58826 (D.N.J. Apr. 18, 2017), defendants moved to dismiss plaintiff's FLSA 

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claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that plaintiff's 

claim must be dismissed because plaintiff alleged that he was an owner, not an "employee." 

The court concluded that plaintiff sufficiently pleaded that he was an "employee" under the 

FLSA. Id. at *14. In so concluding, the court recognized that "[c]ourts have struggled with 

characterizing putative owners and partners that also perform work for their companies, like 

[p]laintiff here, as the economic realities test is generally used to distinguish between 

employees and independent contractors, not employees and owners." Id. at *14-15. The 

court emphasized the acute vulnerability of minority shareholders in closely held 

corporations. Id. at *15-16.

Defendant’s Contentions (Keely): Cramton claims she was “forced to work and 

subordinate” although she does not mention how she was “forced to work” at all let alone 

forced to “subordinate.” Cramton was responsible as an owner for her own activities, work 

schedule, work conditions, capital contributions to ECH to fund wages, her method of 

payment, making payments to herself, oversight of employees in Arizona and she 

maintained all Arizona employment records. Cramton had the power to hire and fire 

employees in Arizona and set their pay. Cramton was responsible for implementing 

company policies in Arizona, ensuring all employees clocked in and out of Revel (employee 

timekeeping system) and submitting all employee hours to Mills for payroll processing. 

Cramton had access to, and was a company owner and signer on, GFL’s bank accounts and 

made payments from GFL’s bank account to herself for her wage payments for labor she 

provided to GFL. Keely did not track Cramton’s daily employment activities, work 

schedule, daily working environment or conditions and other circumstances while in a 

different state because she could not oversee those things from California or Florida. None 

of these factors were handled by Keely. Accordingly, Keely was not Cramton’s employer 

and Cramton was not an employee of Keely under this analysis either. 

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Case law interpreting the meaning of “employer” under the FLSA controls because 

the FLSA and A.R.S. §23-362 define the term in similar ways and no case law specifically 

under A.R.S. §23-362 addresses the issue. Where an individual exercises ‘control over the 

nature and structure of the employment relationship,’ or ‘economic control’ over the 

relationship, that individual is an employer within the meaning of the FLSA. Boucher, at

1091. Keely also does not qualify as Cramton’s employer under the Ninth Circuit’s 

“economic reality test” which considers several factors including that Cramton supervised 

and controlled employee work schedules or conditions of employment in Arizona, Cramton

determined the rate and method of payment for employees in Arizona, and Cramton

maintained employment records in Arizona. Lambert v. Ackerley, 180 F.3d 997, 1011-12 

(9th Cir. 1999). Cramton was an owner. None of these factors were handled by Keely. 

Accordingly, Keely was not Cramton’s employer under this analysis either.

g. If liability under Count IV is found, what amount of minimum wages are 

owed to Cramton. 

Plaintiff: Plaintiff believes the jury will determine the amount of minimum wages 

owed to her. Plaintiff has prepared a demonstrative exhibit demonstrating the hours that 

she believed she worked, which will be based on exhibits and her testimony. The court will 

then treble the amount of minimum wage damages that the jury determines pursuant to 

Arizona minimum wage law. 

Defendants’ Contentions (GFL and Keely): Cramton received wage payments well 

in excess of the minimum wage requirements under Arizona law during all periods claimed 

by Cramton. Cramton is not entitled to any additional minimum wages and suffered no 

damages under the Arizona Minimum Wage Act at any relevant time. To the extent 

Cramton can establish that her wages were below the minimum wage in 2016 or 2017 

(which she cannot), Cramton cannot recover from GFL or Keely for alleged damages that 

were caused and contributed to by her own actions, omissions and wrongful conduct. 

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Cramton caused her own failure to track her own hours. Cramton had the responsibility to 

ensure that all Arizona employees tracked their hours. Cramton deleted company data that 

could be used to recreate her hours worked. Cramton accessed GFL bank accounts herself 

to make wage payments to herself. To the extent Cramton believed her transfers were 

below the minimum wage, Cramton as an owner caused her own purported damages. Even 

assuming liability could be assessed despite the overwhelming evidence to the contrary, 

Keely’s liability is zero because she is not Cramton’s employer and Cramton was a member

not an employee of Keely. GFL’s liability for 2016 should be zero because Cramton did 

not work the 160 hours claimed for GFL and because Cramton was paid well above the 

minimum wage. Even assuming GFL or Keely can be liable to Cramton for Cramton’s 

own conduct at all, it would be inequitable and offend basic principles of fairness if 

Cramton was not held minimally to her 18.6% of ownership interest (at that time) for her 

own acts, failures, omissions and misconduct. Further, if any liability were found (and 

none should be found) under Counts VII, IX or X, GFL and Keely would be entitled to a 

full offset because cash paid on an equity compensation arrangement would also qualify as 

monetary compensation for purposes of the Arizona Minimum Wage Act. Cramton has no 

legitimate basis for multiple or duplicative recovery.

h. Whether Cramton would be entitled to “Sale Proceeds” upon ECH’s 

asset sale to Kahala.

Plaintiff: Plaintiff is entitled to the fair market value of the membership value of 

ECH at the time that that it was wrongfully taken away from her in October 2016. Fair 

market value is based on what a willing buyer would pay a willing seller. That value is 

conclusively established by the Kahala sale, which valued ECH at $2.6 million. Based on 

Cramton’s 18.6% membership interest, she is entitled to damage for the fair market of that 

interest -- or $483,600.

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Defendants’ Contentions: Fair market value of unvested units subject to the Operating 

Agreement buyout provisions that a willing buyer would pay a willing seller is zero. 

Unvested units have no value and Cramton could not even find a willing buyer of unvested 

units because they were subject to forfeiture. Cramton had an 18.1% ownership in ECH. 

She would not under any circumstances have a right to $483,600 regardless of whether she 

would remain employed or not. ECH adopted the Eat Clean 2016 Unit Incentive Plan on 

October 27, 2016 and David Glines was awarded unit options 44,590 unit options to acquire 

units in ECH in February 2017 resulting in dilution of Cramton’s interest to 18.1% - she has 

admitted as much as have her attorneys. David Glines was awarded. The unit options were 

made retroactively effective to December 31, 2016. The continued assertion that her interest 

was 18.6% is a misrepresentation by her and her attorneys. Cramton admitted that her claim 

is one based specifically on the Operating Agreement and her claim that the Operating 

Agreement was violated because she did not receive Sale Proceeds. (Dkt. 50, at 3:27-4:1). 

Defendants made it clear that Cramton “was not entitled to any proceeds from the [Kahala] 

sale.” (Dkt. 50, at 4:11-4:12). Cramton’s counsel made a similar representation to Judge 

Rayes at the Rule 16 scheduling conference when he referenced the fact that Cramton’s “big 

dollar claim” related to the Operating Agreement. (Dkt. 89, at 12:7-12:17). As such, 

Cramton has admitted that this Court need not look any further than the unambiguous 

language of the Operating Agreement.

The Operating Agreement does not contain any provision for a liquidity event for 

any member. Cramton only held restricted units in ECH that were subject to forfeiture if 

she failed to complete 5 years of employment. All units of ECH are subject to the Operating 

Agreement as provided in § 2.1 in addition to the member’s joinder agreement which 

Cramton executed. The Operating Agreement does not contain a provision giving any 

member a right to receive payment, capital proceeds or distribution of any of the purchase 

price that Kahala Brands, Ltd. (“Kahala Brands,” and together with its affiliate MTY 

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Franchising USA, Inc. (“MTY” collectively referred to as “Kahala”) paid ECH and its 

subsidiaries to acquire the Grabbagreen brand (“Sale Proceeds”) upon the closing of an asset 

deal like the Kahala deal. No provision of the Operating Agreement required Keely to 

buyout Cramton’s units in ECH under any circumstances. § 3.6 of the Operating Agreement 

provides that distributionsto members will be made in the discretion of the majority member

and specifically addresses “Capital Proceeds” stating that payments of capital proceeds (or 

Sales Proceeds as Cramton labels it) will only be paid in the discretion of the majority 

member. Cramton was not a majority member at any time. On and after January 1, 2017, 

Keely owned a majority of the units of ECH and was the majority member. § 9.3(b) of the 

Operating Agreement expressly required Cramton to complete 5 years of employment to be 

entitled to any money at all and expressly provided Keely with the option to buyout 

Cramton’s unvested units for $1 if Cramton resigned prior to the completion of the 5 years 

of employment required of her. The only wrongful thing that happened here is the wrongful 

filing of this lawsuit. The exercise of the buyout option is and was expressly provided under 

the Operating Agreement at all times.

Cramton has the burden to prove, and has proffered no evidence at all, that she was 

entitled to receive Sale Proceeds as a result of the closing of the asset sale to Kahala under 

the terms, conditions and obligations of the Operating Agreement. Cramton has not cited 

to this Court a single time any provision of the Operating Agreement providing her with 

any basis whatsoever to have ever stated to this Court that she had a right to Sale Proceeds. 

She is unable to carry her burden of proving that she had such a right and consequently, 

she is unable to prove causation or damages under Counts VII, IX and X. Bald and 

unsupported statements that she would have received Sale Proceeds had she been employed 

through the closing date directly contradict the unambiguous language of the Operating 

Agreement and such statements are insufficient to carry her burden of proof of causation 

and damages and are inadmissible parol evidence. 

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Even if Cramton had remained employed until the Kahala deal closed on March 15, 

2018, Cramton would have no right to Sale Proceeds. The rights and benefits bargained 

for under the Operating Agreement do not include a right or benefit to Sale Proceeds, to 

proceeds of a capital event, to a fair market value buyout by Keely, or to distributions or 

other payments under the Operating Agreement especially while the units were unvested 

prior to November 29, 2021 (had she remained employed until then) irrespective of what 

was said or not said on September 18, 2017 – it does not matter with regard to whether 

Cramton would receive any money (she would not in any event). In addition, On 

September 18, 2017, the Due North Deal was still pending and other potential buyers were 

interested.

The bargained for rights and benefits specifically limit Cramton’s remedies to 

continued retention of units, and even that right was conditioned on Cramton’s continued 

employment for the mandatory 5-year period set forth in § 9.3(b) of the Operating 

Agreement. It is irrefutable that she worked only 10 months of that period and she has 

admitted that she had no intention of continuing her employment for an additional 4 years, 

2 months and 5 days. It is irrefutable that Cramton voluntarily resigned on September 24, 

2017. It is irrefutable that Keely exercised the buyback option provided under § 9.3(b) of 

the Operating Agreement on October 30, 2017 – over a month after her resignation. Keely 

stated in writing to Cramton:

“Pursuant to Section 9.3(b) of the Eat Clean Holdings, LLC (ECH) Operating 

Agreement (OA). I am notifying you in writing of my request to exercise the 

right to purchase 100% of the Units you own in ECH for $1. The closing for 

the transfer will be tomorrow at 4PM EST. Also, pursuant to Sections 9.3(b) 

of the OA, you are obligated to sell 100% of your Units to me for $1. Please 

reply that you agree to transfer before the closing time specified herein.

If you do not [sic] your agreement to the transfer by the closing time in this 

written notice, pursuant to Section 16.7(a) of the OA I, as President, will 

exercise the power of attorney granted to me by all Members in ECH to 

effectuate the transfer required from you under Section 9.3(b) of the OA. 

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That required transfer will be reflected in the books and records of ECH 

immediately after the closing time of 4PM EST October 30, 2017.” 

§ 9.3(b) contains no exception to Cramton’s 5 years of employment requirement 

without a voluntary resignation, including without limitation, no exception to the 

employment requirement upon ECH’s sale of the Grabbagreen brand.

Kahala expressly provided that no employment would be offered to ECH’s owners 

as part of its asset acquisition of the Grabbagreen brand and ECH’s business operations 

were ongoing. Whether Cramton resigned on September 24, 2017 or on March 15, 2018 

the day Kahala purchased the Grabbagreen brand, or on any other date prior to November 

29, 2021, Keely would have the right to buyout her units for $1 because Cramton was not 

given units to work for 10 months or 16 months or until it suited her or until an asset sale 

of a brand occurred. She was given units to work for 5 years, a requirement she did not 

intend to fulfill even if she had been on the September Kahala Call herself. The value of 

the unvested ECH units with a condition that would not be satisfied under November 29, 

2021 was zero and, in any event of voluntary resignation, the maximum right to a payment 

of money was and is $1. Cramton was paid $1. The disputed events of September 18, 

2017 are irrelevant under all circumstances on the issue of whether Cramton would receive 

money (she had no right and would not receive money). Cramton testified she had no 

intention of completing the 5 years of employment required of her. Keely’s buyout right 

under § 9.3(b) had already been triggered by her resignation from GGS. Keely’s 

conversation with Cramton on September 18, 2017 was not material nor could it result in 

any change in Cramton’s rights or legal position. She is precluded from sustaining Counts 

VII, IX and X. 

ECH was, and continues to be, entitled under its Articles of Organization, the 

Operating Agreement and the Arizona Limited Liability Company Act, to retain its assets 

and deploy those assets for any lawful business purpose as permitted under law. ECH was,

and continues to be, entitled to apply the terms, conditions and obligations of its Operating 

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Agreement to determine the rights and benefits actually provided therein to membership 

units and for the internal operations of the company and allocations between members. 

The monetary damages claimed by Cramton are not provided for under the Operating 

Agreement. Worse, the damages claimed, if awarded to Cramton, would remake the 

agreement entirely, including without limitation, substantially expand the bargained-for 

rights and benefits of Cramton based on claims to underlying assets of the company and 

tort remedies that contradict the bargained-for remedies and risk allocations of the 

Operating Agreement. Cramton would essentially have a preferred class of membership 

units not existing under the Operating Agreement with preferential distribution terms, 

preferential valuation terms, preferential accounting allocations, rights not a part of the 

original bargain while eliminating expressly bargained-for or disclaimed provisions on 

procedures, valuations and limitations on distributions, among other things. 

Cramton never asserted that her damages under Counts VII, IX and X were based 

on the claim that she is entitled to receive Sale Proceeds in her MIDP responses. See, Dkt. 

294, Ex. 1, at 33:9-15; Dkt. 175, at 2:28-3:10. If the “fact” that Cramton is purportedly 

entitled to Sale Proceeds existed in 2017, it could have been alleged in her Complaint, her 

Amended Complaint or at least asserted in her MIDP response. The damages asserted in 

this case under Counts VII, IX and X were not mentioned. Instead, the damages under 

Counts VII, IX and X were improperly claimed by Cramton for the first time in her 

summary judgment pleadings. (Dkt. 142, at 12:5-7 & fn 12). The Defendants have been 

prejudiced by Cramton raising a new claim for damages after the close of fact discovery 

during summary judgment pleadings. Cramton was required to provide a computation of 

each category of damages claimed by her and a description of the documents or other 

evidentiary material on which it is based, including materials bearing on the nature and 

extent of the injuries suffered. See, General Order 17-08 (B)(5). Cramton cannot present 

evidence at trial based on claims of damages and damage computations not alleged in her 

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Amended Complaint in relation to Counts VII, IX and X and not disclosed in her MIDP. 

Rule 37 bars a party from introducing an undisclosed claim or theory of damages at trial 

unless they can show the failure to disclose was substantially justified or harmless. See, 

Fed. R. Civ. P. 37(b)(2), (c)(1); See also, Yeti by Molly, at 1106. Cramton changed her 

theory of damages under Counts VII, IX and X and raised an entirely new theory appearing 

in summary judgment pleadings two years into this lawsuit and long after fact discovery 

closed – namely that she claims that she was entitled to Kahala Sale Proceeds instead of 

the mandatory buyout theory provided in her MIDP. In fact, only $15,688 under Count IV 

was disclosed in item 5 as required in her MIDP. Cramton did not set forth in item 5 of 

her MIDP, as required, any computation of each category of damages caused by the 

purported fraud or negligent misrepresentation. References elsewhere to “value” with no 

related computation do not satisfy the requirements of item 5 of the MIDP. Damages not 

disclosed in item 5 of the MIDP should be barred under Rule 37. All other damages listed 

in item 5 of her MIDP expressly state they are “as a result” of Cramton’s constructive 

discharge, a claim now dismissed. Cramton has made no argument that even suggests her 

untimely disclosures of her damages and damage computation under Counts VII, IX and 

X is justified or harmless. Cramton suffered no damages caused by the Defendants under 

Counts VII, IX or X because she had no right to receive Kahala Sales Proceeds under the 

express and unambiguous terms of the Operating Agreement.

i. Whether Cramton would have remained employed for the required 5 

years.

Plaintiff: Plaintiff does not need to establish whether she would have remaining 

employed for any duration of time. Her claim is based on being wrongfully deprived of her 

property right to the membership interest. 

Defendants’ Contentions: Cramton had no rights to any money or property as a 

member of ECH. Here we are talking about unvested membership interests in a limited 

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liability company. Limited liability companies are creatures of contract and membership 

interests are contractual rights to the economic interests of the limited liability company 

governed by the terms, conditions and limitations of the operating agreement, not property 

rights. Cleanfish, LLC v. Sims, 2020 WL 1274991, at *12 (N.D. CA). The essence of a 

limited liability company is a contract between members. Her membership interest was 

contingent upon 5 years of employment and she must establish she would have satisfied 

the contingency to show causation and damages. Cramton admitted that her claim is one 

based specifically on the Operating Agreement and her claim that the Operating Agreement 

was violated because she did not receive Sale Proceeds. (Dkt. 50, at 3:27-4:1). Defendants 

made it clear that Cramton “was not entitled to any proceeds from the [Kahala] sale.” (Dkt. 

50, at 4:11-4:12). As such, Cramton has admitted that this Court need not look any further 

than the unambiguous language of the Operating Agreement. The Operating Agreement 

expressly, unambiguously, unequivocally and irrefutably states that Cramton was required 

to work 5 years of employment to have any right to any money whatsoever. Until she 

became vested on November 29, 2021, we know the value of her units, they were zero and 

the most she was entitled to receive was $1 upon the exercise of the buyout right. The 

unvested units awarded to Cramton were intended to secure Cramton’s ongoing 

employment, working with Keely, for ECH, its subsidiaries and affiliates for 5 years. The 

award was made in light of, and immediately following, the terminal diagnosis of her 

family member in anticipation of the impact that diagnosis would have for Keely and her 

family. Reflecting these circumstances, the Operating Agreement clearly and 

unambiguously required Cramton to remain employed for 5 years, a period that would end 

on November 29, 2021. This 5-years of employment requirement contained no exceptions 

for any reason and provided for no payment of any sort to Cramton prior to the completion 

of 5 years, including without limitation, no payment of any Sale Proceeds, proceeds from 

any capital event, mandatory buyout, fair market value or otherwise. No provision of the 

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Operating Agreement excused Cramton from her continuing employment requirement. No 

provision of the Operating Agreement entitled Cramton to any cash prior to the vesting of 

the ECH units. The evidence in this case makes this very clear. Cramton absolutely has 

the burden of proving she met the requirements of this condition. If she did not (and it is 

irrefutable that she did not), she has no right or entitlement to any payment, other property

or assets or to the unvested ECH units and she rightfully was subject to buyout for $1 

because she failed to perform the required employment service, abandoned the company, 

abandoned Keely and materially breached her obligations under the Operating Agreement.

There were two potential buyers that conducted due diligence by that time. The first 

was Due North. The Due North Deal was also an asset acquisition of the Grabbagreen 

brand and it was fully negotiated, pending in September 2017 but originally set to close in 

June 2017. In June 2017, Cramton and her counsel had discussions with Keely to request 

that Keely make a discretionary payment to Cramton if the Due North Deal closed. These 

numerous oral and written communications discussing whether Keely would agree to make 

a payment to Cramton if the Due North Deal closed because Cramton had no right to a 

payment at all absent Keely’s discretionary agreement and Cramton knew it. Further, 

clearly Keely knew that Cramton fully understood that she had no right to money upon the 

sale of the Grabbagreen brand because it was repeatedly discussed both orally and in 

writing over a 4-6 week period in relation to the Due North Deal.

Cramton claims she was hanging on to get Sale Proceeds, yet she knew she was not 

entitled to Sale Proceeds. In reality, she was hanging on hoping to convince Keely to

exercise her discretion to make a payment Cramton otherwise had no right whatsoever to 

receive. Nothing Keely allegedly said on September 18, 2017 caused Cramton any 

damages under Counts VII, IX or X because Cramton had no right to any payment at all. 

Cramton knew it, her counsel knew it, Keely knew it, and Keely knew that Cramton and 

her counsel knew and spent all of June 2017 and into July 2017 negotiating this exact point

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with respect to the Due North Deal because Cramton and Keely were both set to become 

employees of Due North if that deal closed. To the extent any payment could have been 

made to Cramton from the closing of the Kahala acquisition, it would have been entirely 

within the discretion of Keely to determine just like it was in the Due North Deal that never 

closed. Keely and ECH cannot, as a matter of law, be held liable in tort for fraud or 

otherwise for not making a completely discretionary payment in relation to unvested units 

nor can liability lie where Cramton failed to complete the required 5 years of employment.

Cramton suffered no damages caused by the Defendants under Counts VII, IX or X 

because her interest in the units were unvested and would remain unvested until November 

29, 2021, any payment prior to that from ECH was within Keely’s discretion.

j. Whether ECH made any representation or took any action upon which 

liability under Counts VII, IX or X can be assessed.

Plaintiff: At all times relevant, Keely Newman was an agent of ECH acting within 

the scope of her authority. Her actions and representations bind ECH. On September 18, 

2017, Keely Newman misrepresented to Cramton that the Kahala sale was off for the 

purpose of invoking her to resign to invoke the operating agreement’s provision to buy her 

membership interest for $1. This misrepresentation was accompanied by a pattern of 

hostile behavior in order to create an environment whether it was not worth it for Cramton 

to remain with the company. 

Defendant’s Contentions (ECH): Keely was the majority member of ECH and only 

in that capacity did she have authority under § 5.1(h) of the Operating Agreement to cause 

the sale of the Grabbagreen brand. Cramton cites to nothing because she has no basis in 

law or in fact to assert that Keely was acting as an agent of ECH and she has proffered no 

evidence to refute the fact that Keely sought to sell the Grabbagreen brand as the majority 

member of ECH. Keely was not an employee of ECH. ECH made no representations to 

Cramton at all and took no actions whatsoever and certainly did not engage in any behavior 

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let alone “hostile behavior” to prevent Cramton from receiving the benefits of the 

Operating Agreement and cannot be held liable for the representations of a member. In 

her capacity as the majority member, Keely was not an agent of ECH and ECH is not 

accountable for the purported statements of Keely as a member. Cramton did not allege 

that Keely acted as ECH’s agent on September 18, 2017 or that ECH was vicariously liable 

in her Amended Complaint or MIDP and she should be prohibited from slipping in a new 

theory of liability at trial. At all relevant times to Counts VII, IX and X, Keely acted in her 

capacity as the majority member pursuant to her authority as a majority member under § 

5.1(h) of the Operating Agreement which provides that any act requiring the approval of 

the members of ECH could be taken by a majority of the members, including all of the 

actions identified in §§ 29-681.C and 29-681.D of the Arizona Limited Liability Company 

Act (§29-601, et. seq.). Which provides:

§ 29-681.C of the Arizona Limited Liability Company Act contains a list of the 

following actions:

1. Adopt, amend, amend and restate or revoke an operating agreement or 

authorize a transaction, agreement or action on behalf of the limited liability 

company that is unrelated to its purpose or business as stated in an operating 

agreement or that otherwise violates an operating agreement.

2. Issue an interest in the limited liability company to any person.

3. Approve a plan of merger or consolidation of the limited liability company 

with or into one or more entities as defined in section 29-2109.

4. Authorize an amendment to the articles of organization that changes the status 

of the limited liability company from or to one in which management is vested 

in a manager or managers to or from one in which management is reserved to 

the members.

§ 29-681.D of the Arizona Limited Liability Company Act contains a list of the 

following actions:

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1. Resolve any difference concerning matters connected with the business of the 

limited liability company.

2. Authorize the distribution of limited liability company cash or property to the 

members.

3. Authorize the limited liability company to repurchase all or part of any 

member’s interest in the limited liability company from that member.

4. Authorize the filing of articles of termination concerning the limited liability 

company.

5. Subject to subsection C, paragraph 4 of this section, authorize an amendment 

to the articles of organization, except that an amendment that merely corrects 

a false or inaccurate statement in the articles of organization may be filed at 

any time by a member if management of the limited liability company is 

vested in one or more managers or by a member if management of the limited 

liability company is reserved to the members.

Further, actions of the board of managers could be taken in accordance with § 6.1(a) 

and (b). Keely was not acting as an agent, employee or board member and Cramton has 

the burden to establish that Keely was acting in a capacity other than as majority member 

and has not proffered any evidence to carry that burden.

In addition, on August 4, 2017, Cramton and Greg Ferrell (“Ferrell”) had numerous 

telephone calls together. Cramton and Ferrell facilitated discussions between Keely and 

Kahala. At all relevant times, Ferrell was an area developer for the Grabbagreen brand and 

the Coldstone Creamery brand with at least 15 years of business relations with Cramton, 

Kahala, John Wuycheck (“Wuycheck”) and Kevin Blackwell of Due North. Cramton and 

Ferrell facilitated a discussion between Keely as the majority member and Kahala. They 

did not call a meeting of the board of managers nor were either of them able to authorize a 

conversation in any other capacity by Keely.

k. Whether Keely Acted As a Member of ECH in the September Kahala 

Call.

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Plaintiff: Keely Newman was acting in the course and scope of her role as employee, 

manager, and member of ECH during the September 2017 phone call with Kahala. In 

addition, Keely Newman is personally responsible for her individual tortious conduct. See 

Lombardo v. Albu, 199 Ariz. 97, 14 P.3d 288 (2000); Restatement (Second) of Agency §§ 

348, 350.

Defendants’ Contentions (ECH and Keely): Keely was not an employee of ECH and 

had no role for ECH. ECH took no board action to authorize Keely as a board member or 

otherwise in relation to the Kahala call. There is absolutely no evidence anywhere in the 

record to support Cramton’s baseless contentions on this point. At all relevant times to 

Counts VII, IX and X, Keely acted in her capacity as the majority member pursuant to her 

authority as a majority member under § 5.1(h) of the Operating Agreement which provides 

that any act requiring the approval of the members of ECH could be taken by a majority of 

the members, including all of the actions identified in §§ 29-681.C and 29-681.D of the 

Arizona Limited Liability Company Act (§29-601, et. seq.) (set forth above). Actions of 

the board of managers could be taken in accordance with § 6.1(a) and (b) but no actions 

were taken by the board of managers of ECH to authorize Keely as an officer or board 

member of ECH to act in relation to the September Kahala Call or enter into any discussions 

in relation to the sale of the Grabbagreen brand. ECH had no employees as a holding 

company. Keely was not acting as an agent, employee or board member and Cramton has 

the burden to establish that Keely was acting in a capacity other than as majority member 

and has not proffered any evidence to carry that burden.

l. Whether Defendants purported representations to Cramton prevented 

her from receiving the benefits of the Operating Agreement.

Plaintiff: In reliance of Defendants’ representation that the Kahala deal fell through, 

Cramton resigned from her employment. Because she detrimentally relied on this 

misrepresentation, she resigned. Defendants then wrongfully took away her membership 

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right. Plaintiff seeks the fair market value of what was wrongfully taken. 

Defendants’ Contentions (ECH and Keely): The fair market value of unvested 

membership units is zero. At maximum, until completing 5 years of employment service 

on November 29, 2021, upon the exercise of the buyout right, Cramton could obtain only 

$1 because the units were unvested until that time. Cramton had a 0% ownership in the 

Grabbagreen brand and was not entitled to any of the purchase price paid to ECH for the 

Grabbagreen brand. The Operating Agreement also does not contain any provision for a 

liquidity event for any member but did contain required discounts in valuation for lack of 

marketability and minority interest status of the unvested units. The maximum value 

Cramton could possibly have is what a buyer would pay for unvested membership interests 

subject to forfeiture under the Operating Agreement – which is zero. Cramton has the 

burden of proving that a zero value unvested membership interest was somehow worth 

over $438,000 – a burden she cannot carry. Cramton had no right or benefit that could be 

implied in the Operating Agreement to something that the unambiguous language in the 

Operating Agreement expressly states she had no right or benefit to receive. This Court 

has held that the implied covenant of good faith and fair dealing is not a vehicle for creating 

contractual terms that the parties did not otherwise agree to, it protects the existing terms 

from subversion. (Dkt. 247, at 52:19:21; See, 11333 Inc. v. Certain Underwriters at 

Lloyd’s, London, 261 F. Supp. 3d 1003, 1024 (D. Ariz. 2017). Counts VII, IX and X 

specifically aim to subvert the express, unambiguous and unequivocal provisions of the 

Operating Agreement. § 3.6 of the Operating Agreement makes it clear that Cramton was 

not entitled to Sale Proceeds or cash of any sort or any other part of ECH’s assets and 

certainly not based on the unvested units and is not a bargained for right or benefit for any

member. Cramton claims that she had an implied right to “truthful information” to 

adequately protect her conditional unvested membership interest. Cramton has repeatedly 

admitted she had no intention of completing the required 5 years of employment. Even if 

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she was provided “untruthful information” (which did not happen), it would make no 

difference as to whether she would receive money from a sale of the Grabbagreen brand to 

Kahala – either way she would not receive money. Given this, even if she manages to 

prove the information was untruthful (which she will not), it was not a cause in fact or 

proximate cause of Cramton losing money she would have otherwise received. Further the 

value of conditional unvested ECH units (like any unvested benefit from any employer) is 

worth zero. Here, Cramton was given $1. Cramton had no right to receive any money at 

all beyond that $1 until after November 29, 2021. Cramton cannot prove that she was 

deprived of monies to which she is entitled or would be entitled if she remained a member 

of ECH until March 15, 2018. 

There is no implied covenant of good faith and fair dealing in the Operating 

Agreement creating in Cramton a right or reasonable expectation to profit from the value 

of unvested units, receive Sale Proceeds, ignore the express discount for lack of 

marketability and minority interest, receive any cash payment at all, a right to a valuation

determined in 2018 on ECH’s asset not her own unvested units that were and will remain 

unvested until November 29, 2021 (assuming she had remained employed), a right to a 

valuation that directly contradicts § 10.1(a) of the Operating Agreement, avoids the 

application of every accounting provision in the Operating Agreement, a right to a 

valuation that avoids all expenses and contingent liabilities of ECH, including without 

limitation, all legal fees, accounting fees, transactions costs, payroll expenses, accrued 

liabilities, lease expenses, indemnification obligations and all other costs of business 

operations nor could she have a reasonable expectation that all such fees, costs, liabilities, 

obligations and expenses would be entirely paid for by Keely. There is no implied covenant 

of good faith and fair dealing in the Operating Agreement that Cramton had any right or 

reasonable expectation that Keely would make any discretionary payment at all, including 

upon the sale of the Grabbagreen brand to Kahala and, Cramton only disclosed she was 

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harmed by the amount of the “value” of the unvested membership interest which was zero, 

or at best it was the $1 buyout payment. On the contrary, Keely had a reasonable 

expectation that the express language of the Operating Agreement would apply and be 

enforced as written. 

Cramton was not prevented from receiving the payments she claims under the 

Operating Agreement because she had no right to any such payment as a result of the sale 

of the Grabbagreen brand to Kahala. Cramton could not have a reasonable expectation to 

receive any payment at all because she resigned before completing the required 5 years of 

employment. An implied covenant of good faith and fair dealing cannot directly contradict 

an express contract term. Snyder v. HSBC Bank, USA, N.A., 913 F. Supp. 2d 755, 772 (D. 

Ariz. 2012). Cramton had no right or benefit to any cash payout from ECH prior to 

November 29, 2021. Cramton had no right to the forfeited units or the value of those units 

determined based on the fair market value of the company as of any date she deems most 

beneficial to herself using whatever methodology she thinks up to benefit herself. 

Cramton’s own sworn testimony has been clear that she had no intention and would not 

under any circumstance continue working for Keely after March 15, 2018 let alone for 

another 4 years, 2 months and 5 days beyond September 24, 2017. 

Further, ECH was entitled in all events to retain its money and redeploy its money

in any lawful manner as well as retain all reserves for contingent liabilities it determined

in its sole discretion to be appropriate. In fact, currently a claim is now pending by a 

franchisee claiming $1 million dollars in relation to which ECH, at all moments in time, 

had a right to retain Sale Proceeds in reserve to provide for defense costs and to satisfy any 

liability. Cramton had, and has, no right whatsoever under the Operating Agreement or 

any law to foist liabilities onto ECH or Keely. This is especially true where the claim 

hinges on allegations of Cramton’s fraud in selling a franchise to that franchisee. ECH had 

and continues to have the right to reserve funds to address precisely that type of contingent 

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liability. In fact, the Arizona Limited Liability Company Act prohibits Cramton from

absconding with the money needed to address this claim leaving Keely to clean up her 

mess. Cramton was not prevented by ECH or Keely from receiving any right or benefit 

under the Operating Agreement.

m. Whether Cramton resigned from her employment with GGS.

Plaintiff: Plaintiff does not believe this is an issue for trial. This Court has already 

determined at Summary Judgment that Plaintiff did not “resign” from GGS on September 

14, 2017 for purposes of Defendants’ legal claims that she had resigned from GGS prior to 

the phone call. Plaintiff’s position is that GGS sold its assets to a third-party on that date, 

which is irrelevant to the remaining claims. Thus, this is not an issue for trial. To the extent 

Defendants are able to raise this issue, Plaintiff’s position is as stated: that she did not 

‘resign’ but that GGS sold its assets. 

Defendants’ Contentions (ECH and Keely): The Court did not grant Defendants 

summary judgment based on the fact that Cramton resigned from GGS. (Dkt. 247 at 58:16). 

Not granting summary judgment does not preclude a party from raising the issue to the trier 

of fact. If that were not so, Cramton’s whole claim would be out because the Court did not 

grant her summary judgment either. On September 14, 2017, GGS sold GG1 and GG3 to 

Black & Furr, LLC. On September 15, 2017, GGS sold GG2 to Black & Furr, LLC for $1. 

Following these two separate sales, GGS continued operating for at least 6 months

thereafter. The sale of assets does not end the operation of a company and certainly did 

not end the operation of GGS. As such, the sale of assets is not the relevant point of focus. 

For example, GGS had continuing consulting and support obligations to Black & Furr, LLC. 

GGS did not cease to exist or cease its activities or fulfilling its obligations the moment it 

sold assets. Cramton informed Keely of her resignation on September 14, 2017. Keely 

understood and believed that Cramton resigned from GGS on September 14, 2017 and she 

understood that her buyout rights under § 9.3(b) of the Operating Agreement were triggered. 

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A second triggering event after September 14, 2017 was not necessary for Keely to exercise 

her buyout rights and Cramton could not suffer any damages under Counts VII, IX or X 

based on the September 18, 2017 telephone call. Cramton left work at GGS on September 

14, 2017 and never returned to work for GGS, provided no consulting or support to Black 

& Furr, LLC and failed to assist GGS in fulfilling its remaining obligations. When an 

employee leaves work and never returns, the employee has voluntarily resigned. In 

addition, on September 24, 2017, Cramton delivered the Resignation Letter that states that 

Cramton resigned from GFL “and its related entities” which can only mean she resigned 

from GGS because it was Cramton’s only other related employer. Even if the trier of fact 

reaches the conclusion that Cramton did not resign from GGS until she delivered her 

Resignation Letter, Cramton resigned from GGS triggering Keely’s buyback rights under §

9.3(b) of the Operating Agreement making it impossible under Counts VII, IX and X for 

Cramton to suffer any damages based on the September 18, 2017 call with Keely. What 

Cramton lost by abruptly resigning, stealing company property, deleting company data,

failing to cooperate and transition work to others, breaching company confidentiality, 

contacting franchisees without permission, badmouthing the company and Keely to other 

constituents, harming the company’s ability to do a deal or continue its operations and even 

astonishingly going to work for a potential buyer, was the façade she needed to maintain to 

convince Keely to exercise discretion and make a payment to Cramton despite the fact that 

her units were unvested and she otherwise had no right to a payment from ECH or in relation 

to Sale Proceeds. She lost the chance to continue to string Keely along. After she let the 

cat out of the bag in terms of her true thoughts and intentions, Keely, of course, exercised 

her buyback right and there was no way for her to convince Keely to make a discretionary 

payment. This is not a cognizable legal loss nor was it caused by anything but Cramton’s 

own actions and misconduct. 

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n. Whether the representations Cramton claims were made on the 

September 18, 2017 about future deals were actually made at all or were facts.

Plaintiff’s position: Plaintiff contends, as she has throughout this litigation, that on 

September 18, 2017, Keely Newman represented to her that the deal with Kahala was off 

the table on that date. Plaintiff understands that Defendants attempt to present a different 

set of facts. The trial will ferret out these facts that the Court determined there were 

competing versions of this call when it denied summary judgment on these claims. Plaintiff 

maintains that Keely Newman’s representations had nothing to do with “future deals” but 

that the representations dealt with the then-current status of the Kahala deal. 

a. Defendants’ Contentions (ECH and Keely): Keely did not make the 

statements alleged by Cramton on September 18, 2017. Tina Griffin (“Griffin”), Keely’s 

assistant, was with Keely at the time Keely spoke to Cramton on September 18, 2017 and 

will testify as to what Keely did and did not say on that call. Specifically, Keely did not 

represent that Kahala would not make future offers to acquire the Grabbagreen brand, or 

that there would be no “deal” in the future with Kahala, Due North, or any other party. In 

fact, Keely told Cramton the opposite of what Cramton is claiming was false. Keely 

informed Cramton that Kahala was not willing to purchase the Grabbagreen brand on the 

Due North Deal terms, but that they could go back to Kahala in a couple days and see if 

Kahala would be interested in different terms. The definition of “deal” is an agreement 

entered into by two or more parties for their mutual benefit and to exist, there must be an 

offer, acceptance of the offer, consideration, and terms sufficiently specific so that the 

obligations created by the “deal” can be determined. The definition of “offer” is a proposal 

to enter into a contract on the terms contained in the offer. The definition of “acceptance” 

is an expression of agreement to the terms of the offer by the person to whom the offer was 

made. The definition of “consideration” is the benefit received, or something given up or 

exchanged, as agreed upon between the parties. Cramton’s claims make no sense on 

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multiple levels, one of which is the language she used is her own language, not of Keely’s 

words. Keely knows a discussion or an offer is not a “deal.”

Even if Keely had told Cramton that ECH would not make or accept future offers to 

sell or acquire the Grabbagreen brand or that no other party would do so, none of this can

form the basis of a negligent misrepresentation or fraud claim because it is premised on 

future conduct. No claim of relief for misrepresentation can be premised upon a promise of 

future conduct. McAlister v. Cititbank (Arizona), 171 Ariz. 207, 215 (App. 1992). Counts 

IX and X are based exclusively upon statements concerning future events and not a fact, 

i.e., that there would be no “deal” in the future with Kahala, Due North or any other party 

for the sale of the Grabbagreen brand – nor would that be reasonable or justifiable to rely 

on without any inquiry. Because the alleged statements relate to future conduct, Cramton’s 

allegations cannot support Counts IX or X. 

o. Whether the representations Cramton claims were made were true when 

made.

Plaintiff: Plaintiff disagrees that this is the correctly stated issue. The issue for 

purposes of a negligent misrepresentation or fraud claim is whether the representations 

made by Keely Newman were “false.” Cramton contends that they were false. Keely 

stated the Kahala deal was off the table. It was not. The Kahala witnesses have already 

confirmed as such.

Defendants’ Contentions (ECH and Keely): Truth is an absolute defense to Counts 

VII, IX and X. The statements Keely actually made were true. It is irrefutably true that 

the then-current status of the so-called “deal” based on the Due North Deal terms was in 

fact “off the table” as Cramton puts it. Keely and Kahala never discussed the Due North 

Deal terms again after September 18, 2017. Keely told Cramton that Kahala rejected 

Keely’s offer to sell the Grabbagreen brand on the same terms of the Due North Deal –

irrefutably true. Participants in the September Kahala Call confirm that statement is true. 

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The evidence demonstrates the truth of Keely’s representation. ECH had negotiated the 

Due North Deal, but the deal had not closed yet. Keely having pressing issues concerning 

a family member’s terminal cancer diagnosis, had discussions concerning Kahala’s 

potential purchase of the Grabbagreen brand. Keely considered Kahala as a buyer, but only 

on the same terms as the Due North Deal with Kahala effectively stepping into Due North’s 

position under the existing contracts. During the September Kahala Call, Kahala 

representatives informed Keely on that call that it would not agree to acquire the 

Grabbagreen brand under the terms of the Due North Deal. Following that call, Keely 

provided truthful information to Cramton regarding the discussion, i.e., Kahala would not 

agree to acquire based on the terms of the Due North Deal. It is undisputed that Keely 

never again discussed or negotiated the Due North terms with Kahala. No matter how 

Cramton changes the purported representation, it was true when Keely made it on 

September 18, 2017. Further, Keely did not provide false or incorrect information to 

Cramton or fail to disclose material information known to Keely on September 18, 2017 to 

Cramton. The inquiry here is not what Kahala knew, it is what Keely knew and the best 

indicator is the testimony of Griffin and Price because they, like Keely, were not privy to 

Kahala’s internal discussions or intentions and could not foresee the future any more than 

Keely could. 

p. Whether the representations Cramton claims were made on the 

September 18, 2017 telephone call were material.

Plaintiff: Plaintiff contends the representations made by Keely Newman were 

absolutely material; so material that they caused Plaintiff to separate her employment. 

Defendants’ Contentions (ECH and Keely): Material representation is defined in 

Black’s Law Dictionary as “a representation to which a reasonable person would attach 

importance in deciding his or her course of action in a transaction.” Keely, ECH and 

Cramton were not in a transaction. Further, none of the alleged representations, let alone 

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the statements actually made by Keely, would be material in influencing a reasonable 

person to voluntarily resign because whether Kahala ever bought the Grabbagreen brand 

or not had no relationship whatsoever with the fact that Cramton had no right to Sale 

Proceeds or cash of any sort from ECH upon the sale of the Grabbagreen brand. The bald 

assertion that Cramton would get money if Kahala acquired the Grabbagreen brand has no 

basis in law or in fact and directly contradicts the unambiguous terms of the Operating 

Agreement. Cramton would be in exactly the same position whether there was a Kahala 

deal or there was no Kahala deal – either way, she would get no money. Cramton knew 

this, her attorney knew this, they discussed it with Keely in June and July 2017 in relation 

to the Due North Deal. No reasonable person would resign after one conversation with 

Kahala when the Due North Deal, a fully negotiated deal, was still pending. No reasonable 

person would resign when there were several other potential buyers waiting in the wings if 

neither Due North or Kahala ultimately bought the brand. The alleged statement about 

whether Kahala would buy the Grabbagreen brand in the future was not material to whether 

Cramton should hang on or not – it did not matter what Kahala did or did not do, Cramton 

was not entitled to anything either way.

Cramton fully understood that she had no right to any money in the event of the sale 

of the Grabbagreen brand to Kahala. The evidence in this case makes this very clear. There 

were two potential buyers that conducted due diligence by that time. One was Due North. 

The Due North Deal was also an asset acquisition of the Grabbagreen brand and it was 

fully negotiated, pending in September 2017 but originally set to close in June 2017. In 

June 2017, Cramton and her counsel had discussions with Keely to request that Keely make 

a discretionary payment to Cramton if the Due North Deal closed. These numerous oral 

and written communications discussing whether Keely would agree to make a payment to 

Cramton if the Due North Deal closed occurred because Cramton had no right to a payment 

at all absent Keely’s discretionary agreement. Further, clearly Keely knew that Cramton 

fully understood that she had no right to money upon the sale of the Grabbagreen brand

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because it was repeatedly discussed orally and in writing over a 4-6 week period in relation 

to the Due North Deal.

By contrast, the September Kahala Call was a conversation and involved no 

agreements of any sort, only an offer to Kahala that if they could close faster than Due 

North on the same terms, Keely would sell to Kahala instead of Due North. A side 

conversation with Kahala has no connection whatsoever to Cramton’s obligations under 

the Operating Agreement to continue employment for 5 years or her complete lack of any 

right at all to Sale Proceeds. Cramton testified under oath that she never contemplated 

resigning until after September 14, 2017. Cramton testified that while she was in California

she decided that she “couldn’t go back” and she “couldn’t take it anymore” and told Dana 

Mavros (“Mavros”) there were other buyers but the brand would not sell “any time soon.” 

A reasonable person would not decide to stay employed just because Kahala might one day 

buy the Grabbagreen brand particularly given that no Sale Proceeds or cash would be 

distributed to Cramton either way. In addition, Cramton was a facilitator of the discussions 

between Keely and Kahala and no reasonable facilitator would abandon all hope after one 

call without asking anyone a single solitary question – according to her story.

q. Whether Keely or ECH intended to fraudulently deceive Cramton.

Plaintiff: Plaintiff contends Keely (as an agent of ECH) intended for Cramton to rely 

on her representations and induce her into separating her employment. 

Defendants’ Contentions (ECH and Keely): Both Keely and Price (with EKS&H 

Capital Advisors) left the September Kahala Call with the understanding that Kahala 

rejected Keely’s offer to sell the Grabbagreen brand to Kahala on the same terms and 

conditions as the Due North Deal, no counteroffer was made and no next steps were 

discussed. Defendants provided truthful information to Cramton and had no intention to 

fraudulently deceive Cramton. Fraud cannot be predicated upon unfulfilled promises, 

expressions of intention, or statements concerning the future, without evidence that such 

were made with the present intent not to perform. Spudnuts v. Lane, 131 Ariz. 424, 426 

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(App. 1982). The party alleging fraud bears the burden of establishing the intent to deceive. 

McAlister, 171 Ariz. at 214. Unless Cramton can prove that ECH and Keely intended to 

deceive her at the time the representation was made, the claim cannot stand. Id. The 

underlying policy is that a promise to perform in the future is not a representation which 

can be shown to be true or false at the time it was made, and therefore, a person has no right 

to rely on the representation of a fact not in existence. Denbo v. Badger, 18 Ariz.App. 426, 

428 (1972).

Cramton has not presented any evidence of ECH’s or Keely’s present fraudulent 

intent. Among the myriad of reasons why the purported “fraud” makes no sense at all aside 

from the unambiguous language of the Operating Agreement is the fact that Keely was not 

sitting around coming up with a fraud scheme. Rather, Keely and her family were residents 

of Florida who evacuated Florida on September 8, 2017 ahead of Hurricane Irma and 

returned to Florida on September 14, 2017. Upon her return, Keely devoted her time and 

attention from September 14, 2017 through September 20, 2017 (i) to clean-up efforts at her 

home consisting of the removal of downed palm trees and debris, and (ii) to raise funds for 

charitable relief efforts as well as make arrangements to deliver food and water to the 

hardest hit communities of Collier and Lee counties in Florida. She had little involvement 

with Cramton during that emergency and her attention was on more important matters of 

helping other people who had just lost everything to the hurricane.

Fraud may not be established by doubtful, vague, speculative, or inconclusive 

evidence. Enyart v. Transamerica Inc. Co., 195 Ariz. 71, 77 (App. 1998). Fraud is never 

presumed and cannot be found to exist on a mere suspicion as to the possibility thereof. 

Fraud must be proven by clear and convincing evidence. The clear and convincing standard 

requires evidence showing that the truth of Cramton’s allegations is “highly probable.” 

Colorado v. New Mexico, 467 U.S. 310, 316 (1984). Cramton does not have clear and 

convincing evidence that on September 18, 2017, ECH or Keely even made the statements 

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alleged let alone that they somehow knew that Kahala would acquire the Grabbagreen brand

in the future but intentionally deceived Cramton by telling her that no future deals would be 

made for the acquisition of the Grabbagreen brand. Keely could not have known whether 

Kahala or some other party would make an offer in the future or if the Due North Deal that 

was pending would close.

Keely also did not know whether Kahala would be interested in a deal on different 

terms when she spoke to Cramton. Circumstances changing at a later time do not change 

the fact that the Keely’s statement was made in good faith. Further, Keely knew Cramton 

had no right to Sale Proceeds so there was no reason to try to “dupe” her out of something 

she never had any right to receive in the first place. Keely also knew that Cramton was 

receiving updates directly from Kahala and with direct access and better information, there 

would be no reason for Keely to think Cramton was not well advised or not able to access 

any information she wanted to receive. Keely also understood and believed that Cramton 

resigned from GGS and her buyout rights had already been triggered. Keely knew a second 

triggering event was not required. Cramton cannot establish that Keely had a present 

fraudulent intent on September 18, 2017 because no such intent existed and there was 

nothing that she was entitled to receive that she was “duped” out of by the Defendants.

Cramton’s contention also makes no sense considering that Cramton had more direct 

conversations with Kahala than Keely did. How could Keely defraud her when Cramton 

had, and was getting her information directly from Kahala. Specifically, from August 4, 

2017 until submitting her Resignation Letter (defined below), Cramton had direct telephone 

calls with Wuycheck: August 4, 2017, August 10, 2017 (twice), September 12, 2017 (twice) 

and September 22, 2017. Prior to receiving Cramton’s Resignation Letter, Keely had only 

four calls with Kahala representatives: August 10, 2017 (with Cramton on the call), August 

15, 2017 (Kahala wanted exclusivity and Keely declined because of the pending Due North 

Deal), August 18, 2017 (Keely informed Kahala she required either non-exclusivity or an 

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LOI to grant access to Due North data room) and September 18, 2017 (Kahala rejected 

Keely’s offer to sell the Grabbagreen brand to Kahala on the Due North Deal terms). With 

greater access to Kahala, it makes no sense that anyone would even think to misrepresent 

the status of Kahala’s interest to Cramton.

r. Whether Keely or ECH knew Kahala would be interested in discussing a 

deal on different terms than the Due North Deal terms.

Plaintiff: Plaintiff does not believe this is a separate issue for trial. Whether Keely 

knew Kahala would be discussing a deal on different terms is not an element of any claims 

in this case. This issue whether Keely knew, or was negligent in knowing, that the 

statements she made—that the Kahala deal was off the table were false. Plaintiff believes, 

based upon the evidence including but not limited to the Kahala witnesses’ testimony, that 

Ms. Newman knew her representations were false and/or was negligent in same that the deal 

with Kahala had not fallen through.

Defendants’ Contentions (ECH and Keely): To make an intentionally false 

statement, Keely had to know the purported statement was false. This is an essential 

element and Cramton has the burden to prove by clear and convincing evidence not what 

the Kahala witnesses knew internally at Kahala, but what Keely and Price knew at the end 

of the September Kahala Call. Both Keely and Price (with EKS&H Capital Advisors) left 

the September Kahala Call with the understanding that Kahala rejected Keely’s offer to sell 

the Grabbagreen brand to Kahala on the same terms and conditions as the Due North Deal, 

no counteroffer was made and no next steps were discussed. Price was retained because he 

regularly negotiates sales of a businesses. He advised Keely in negotiations with Due North

and then with Kahala in 2017. The understanding both Keely and Price had was confirmed 

by other participants in the call and the only other witness, Griffin. The inquiry is not what 

the Kahala witnesses’ knew, planned, discussed internally or determined their negotiation 

strategy to be. The inquiry is what knowledge did Keely and Price have when the 12-minute 

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September Kahala Call ended. It is irrefutable that there were no other communications in 

which Keely could gain any further insight or special knowledge of Kahala’s future 

intentions nor was there any other communication where she gained knowledge of, or 

obtained insight into, their internal communications, internally determined negotiating style 

or strategy. But the burden is not on Keely to prove her good faith. The presumption is in 

favor of honesty. It is Cramton’s burden to overcome that presumption by establishing with 

clear and convincing evidence that would make it “highly probable” that Keely knew what 

Kahala would do next. Cramton has not, and cannot, meet this standard of proof and Count 

X must fail.

s. Whether Keely or ECH intended that Cramton be induced or act upon 

the alleged statement by resigning and knew Cramton would resign if Kahala would 

not enter into a deal with ECH.

Plaintiff: Plaintiff believes that Keely, as an agent of ECH, did intend for Plaintiff 

Cramton to act and rely on her representations that the Kahala deal was off the table, and 

Plaintiff did so resign. Keely was well aware that Defendants were not paying Plaintiff and 

were treating Plaintiff so poorly, that she would likely resign if there was no hope of a deal 

in the works because that would continue to make Plaintiff an indentured servant (which 

Plaintiff already was) working for free in violation of Arizona’s minimum wage laws. 

Defendants’ Contentions (ECH and Keely): Cramton was paid $70,140.89 for less 

than 9 months of service in 2017. The assertion that Cramton was an indentured servant or 

working for free is absurd. To be liable under Counts IX or X, Keely and ECH had to know 

that Cramton would resign if specifically Kahala would not agree to buy the Grabbagreen 

brand at that time and they had to intend to induce Cramton into acting or cause Cramton to 

act upon that information by resigning. The liability of the maker of a purportedly negligent 

misrepresentation “is limited to the transaction that he intends, or knows that the recipient 

intends, to influence.” Southwest Non-Profit Housing Corp. v. Nowak, 234 Ariz. 387, 391 

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(App. 2014). Cramton has the burden to establish that Keely knew that Cramton would 

resign specifically because Kahala did not agree to a deal on the September Kahala Call. 

There is no evidence that Keely had that knowledge or knew that telling Cramton what 

Cramton alleges Keely said would induce or influence Cramton to resign. This is true even 

if, as Cramton’s evolving story goes, Kahala would never buy the Grabbagreen brand. 

There is also no evidence that Keely knew she would resign despite the pending Due North 

Deal and despite discussions with other potential buyers. Cramton’s big decision to resign 

or not resign made no difference with respect to the fact that Cramton was not entitled to 

receive Kahala Sale Proceeds under the unambiguous provisions of the Operating 

Agreement. Cramton cannot be duped out of something that was not hers to receive. This 

is so clear that the story Cramton told in this case is also not believable because of its 

pointlessness. It would be pointless to try to induce her to resign. Cramton had no right to 

Sale Proceeds whether she resigned or not. Two conclusions emerge from Cramton’s efforts 

to mislead and misdirect. First, the supposed motivation for the supposed trickery is hollow 

– there is nothing there. Second, Cramton’s alleged reason for resigning because she would 

not get Kahala Sales Proceeds falls flat as well because she would not get Kahala Sales 

Proceeds under any circumstances under the Operating Agreement and she knew that. 

Cramton cannot prevail on Counts IX or X.

t. Whether Cramton was ignorant of the fact that the Grabbagreen brand

would be sold.

Plaintiff: Plaintiff believes Defendant mischaracterizes this element. The element 

requires that the Plaintiff be ignorant of the falsity of the misrepresentation—here that the 

Kahala deal was off the table—not whether the brand would ever be sold. Plaintiff contends 

she was ignorant of the falsity of the statement—that the Kahala deal was not actually off 

of the table. She had no reason to question Ms. Newman’s statements, relied on them, and 

separated her employment. Plaintiff was not on the call regarding the status of the Kahala 

deal and John Wuychek testified that Plaintiff was shocked when she learned—the day after 

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her resignation—that the representations were in fact false. In the end, Ms. Newman’s 

statements were false and Ms. Cramton was ignorant of that fact. 

Defendants’ Contentions (ECH and Keely): Cramton knew the Grabbagreen brand 

would be sold. She had no reason to resign knowing the brand would be sold. Cramton 

claimed in this case that she resigned because there would be no deals in the future with any 

possible buyer and that she was just hanging on to get sale proceeds. With that as her reason 

and motivation, it made absolutely no difference who the buyer was and the fact that she 

knew there were more potential buyers lined up makes it impossible for Cramton to be 

ignorant of the fact that the Grabbagreen brand would be sold regardless of the buyer. If 

under the circumstances, the injured party should have reasonably researched more into the 

representation, a court will not consider the party to be ignorant. See, Fields v. Mitch 

Crawford’s Holiday Motors Co., 947 S.W.2d 818, 821, 1997 Mo. App. LEXIS 1125, at *7-

8 (Mo. Ct. App. 1997). Cramton’s background and knowledge of the circumstances driving 

Keely’s decision to sell the Grabbagreen brand was more than sufficient for Cramton to 

understand that Keely was going to sell the Grabbagreen brand to Due North, Kahala or one 

of the others that Keely communicated with in relation to the sale of that brand. A sale 

would happen regardless of whether the buyer was Kahala or another party, it was just a 

question of when or who. Cramton’s background and knowledge of negotiations and 

closings of deals in business development and the Due North Deal was more than sufficient 

for Cramton to have a clear understanding that almost no deal of any consequence is 

negotiated or made in a single telephone call. As such, Cramton could not have been 

ignorant of the fact that a single telephone call could not be used to predict the future and 

certainly not to do so and conclude there was no chance of any sale under the circumstances. 

Cramton’s background and knowledge of Kahala and her relationship to Wuycheck was 

more than enough for Cramton to have contacted Wuycheck and Kahala directly to obtain 

any information she wanted with regard to Kahala’s intentions. Cramton and Wuycheck

are former colleagues who worked together on the Coldstone Creamery brand and she knew 

him since at least 2001. Cramton, in fact, did contact her long-term personal friend,

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Wuycheck before resigning. Any purported representation by Keely about Kahala’s

intentions could not be fraudulent because Cramton’s background and knowledge of the 

foregoing sufficiently placed Cramton on notice that the Grabbagreen brand would be sold. 

If, as Cramton claims, all she was doing was hanging around waiting for Sale Proceeds, it 

made no difference who the buyer was, what mattered was that there was going to be a sale 

regardless and Cramton possessed sufficient knowledge to know a sale would happen so if, 

as she claims, her only purpose was to wait for a sale, then she had no reason to decide to 

resign. 

u. Whether Cramton had a right to rely or justifiably relied on ECH’s or 

Keely’s purported representations about Kahala in deciding whether to resign.

Plaintiff: Plaintiff’s position is that she had a right to justifiably rely on Ms. 

Newman’s statements. She was not involved in the phone call between Ms. Newman and 

Mr. Wuycheck where the terms of the deal were discussed. She had to rely on Ms. 

Newman’s representations as to the status of the call and the deal. And she did so to her 

detriment when she separated her employment. 

Defendants’ Contentions (ECH and Keely): Cramton had repeated direct 

conversations with Wuycheck, including direct conversations about the level of Kahala’s 

interest in the Grabbagreen brand and status of their consideration of Keely’s offer to sell 

it to them on the same terms as the Due North Deal. She not only did not have to rely on 

Keely, she in fact did not rely on Keely. Rather, she called Wuycheck directly – something 

she could do at any point in time. Cramton’s alleged reliance on Keely’s purported 

statement that there would be no future deals for the acquisition of the Grabbagreen brand, 

especially with Kahala, was not reasonable or justified. Echols v. Beauty Built Homes, 

Inc., 132 Ariz. 498, 500 (1982). Cramton has the burden to establish a right to rely on the 

alleged false statement or that reliance was reasonable. St. Joseph’s Hosp. & Med. Ctr. v. 

Reserve Life Ins. Co., 154 Ariz. 307, 316 (1987). For negligent misrepresentation reliance 

must be justified. “Reliance is ‘justifiable’ only when ‘circumstances [are] such to make 

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it reasonable for plaintiff to accept defendant’s statements without an independent inquiry 

or investigation.’” Philipson & Simon v. Gulsvig, 154 Cal. App. 4th 347, 364, 64 Cal. Rptr. 

3d 504, 517 (Cal. Ct. App. 2007). Here, Cramton cannot show that she reasonably or 

justifiably relied on the purported statements of Keely on September 18, 2017.

A reasonable person would be put on inquiry in making a decision that could end 

her ownership rights where the purported statements were entirely inconsistent with the 

circumstances and where a statement to the effect that there was no chance of any future 

deals is facially incredible to think that there was no buyer in the world for the Grabbagreen 

brand – a belief that would lack the basic care and reason that someone in business 

development and sales would ordinarily apply. It is unreasonable and not justified for 

Cramton to rely on Keely’s purported ability to predict the future as to what deal with a

third party would materialize and/or consummate. Cramton knew the terminal cancer 

diagnosis for Keely’s family member had not changed (and could not change short of the 

discovery of a cure for cancer) and therefore, Cramton knew at all times that Keely wanted 

to sell the Grabbagreen brand quickly. It would be unreasonable and not justified for 

Cramton to rely on a sudden representation that there would be no future deals or that there 

was no chance of a deal. Further, Cramton could have, but failed to, confirm with Keely 

her plans to sell the Grabbagreen brand prior to making the decision to resign. It was

unreasonable and not justified for Cramton to believe at any time that she could hang on 

and get Sale Proceeds from the sale of the Grabbagreen brand. In order for Cramton to get 

any cash from ECH, Cramton understood that she would have to convince Keely to 

voluntarily agree to pay her. Therefore, Cramton’s stated basis for deciding to resign is 

illogical, not justifiable and unreasonable. It is not reasonable or justifiable for Cramton 

to think her resignation decision was at all related to the unambiguous terms of the 

Operating Agreement providing that she had no right to Sale Proceeds. 

Before resigning, she contacted Wuycheck. She had direct access at any time to 

Wuycheck. Cramton also communicated several times weekly with accountant Mills and 

franchise counsel, Antonia Scholtz of Cheng Cohen – the firm that also represented ECH 

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in the Kahala deal. She had direct access to Kelli Newman. She could have confirmed, 

investigated or received an update about Kahala. Further, she could always have just gone 

back to Keely and asked for an update, confirmation or clarification or simply answered 

Keely’s calls after September 18, 2017 but she admitted she deliberately refused to take 

Keely’s calls because she did not want to talk to her. Cramton’s alleged reliance on Keely’s 

oral statements was unreasonable and unjustified.

Absent Keely’s voluntary agreement to make a payment to Cramton upon the 

closing of a deal with Kahala, Cramton only had a right to continue to hold the units 

awarded to her so long as she remained employed for an additional 4 years, 2 months and 

5 days. The purported statements of Keely on the September 18,

, 2017 would not induce a 

resignation because there was no right to receive Kahala Sale Proceeds even if Cramton 

continued employment through the closing of the Kahala deal unless Keely exercised 

discretion to make a discretionary payment. “Actual reliance occurs when a 

misrepresentation is ‘an immediate cause of a plaintiff’s conduct, which alters his legal 

relations,’ and when, absent such representation, ‘he would not, in all reasonable 

probability, have entered into the contract or other transaction.’” Engalla, 15 Cal. 4th at 

976, 938 P.2d at 919 (quoting, Spinks v. Clark, 147 Cal. 439, 444, 82 P. 45, 47 (1905). 

Cramton did not enter into a contract or other transaction with Keely based on the alleged 

statements nor did the decision to resign alter a legal right of Cramton’s to Sale Proceeds 

– either way she had no legal right and for this reason, the purported representations of 

Keely were not the cause of Cramton losing out on Kahala Sale Proceeds. Whether 

Cramton resigned or not based on statements made that day, she had no right to any money 

whatsoever from the closing of the Kahala deal. Cramton could not justifiably rely thinking 

that there were no Sale Proceeds to get if Kahala was not going to buy the Grabbagreen 

brand because she had actual knowledge that a payment was within Keely’s discretion. 

Cramton’s supposed reliance was not reasonable or justifiable.

v. Whether Defendants’ Caused Cramton to suffer any loss or damages 

claimed under Counts VII, IX and X.

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Plaintiff: Plaintiff’s position is that here membership interest was wrongfully taken 

from her. As a result, she is entitled to the fair market value of that membership as 

established by the Kahala sale. 

Defendants’ Contentions (ECH and Keely): The Operating Agreement governing 

this case is clear, unambiguous and unequivocal. Cramton admitted that her claim is one 

based specifically on the Operating Agreement and her claim that the Operating Agreement 

was violated because she did not receive Sale Proceeds. (Dkt. 50, at 3:27-4:1). Defendants 

made it clear that Cramton “was not entitled to any proceeds from the [Kahala] sale.” (Dkt. 

50, at 4:11-4:12). Cramton’s counsel made a similar representation to Judge Rayes at the 

Rule 16 scheduling conference when he referenced the fact that Cramton’s “big dollar 

claim” related to the Operating Agreement. (Dkt. 89, at 12:7-12:17). As such, Cramton 

has admitted that this Court need not look any further than the unambiguous language of 

the Operating Agreement. Cramton held unvested units subject to a buyout right for $1 if 

Cramton resigned without completing 5 years of employment. Cramton resigned with 4 

years, 2 months and 5 days to go before she would vest on November 29, 2021. The fair 

market value of unvested units is zero. The most Cramton could hope to receive prior to 

November 29, 2021 is $1 upon a buyout. Cramton was bought out and did receive the $1 

provided to her under the Operating Agreement. Cramton had a 0% ownership in the 

Grabbagreen brand and was not entitled to any of the purchase price paid to ECH for the 

Grabbagreen brand. The Operating Agreement also does not contain any provision for a 

liquidity event for any member or provide her with a right to fair market value upon 

resignation based on an asset she did not own. The only wrongful thing here is the filing 

of this lawsuit. Cramton was not entitled to Sale Proceeds from the Kahala deal regardless 

of whether she remained employed or not. By resigning prior to the closing of the Kahala 

deal, the Defendants could not cause Cramton to suffer the damages of losing Sale Proceeds 

she would have no right to receive in any event. As such, Cramton cannot establish that 

Defendants caused her to suffer damages by making the purported statements. Cramton 

has not proffered evidence that she had any entitlement to the valuation or the damages she 

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claims under the Operating Agreement. Cramton had and continues to have no reasonable 

basis in law or in fact to assert Counts VII, IX or X because she can proffer to this Court 

or to the Jury no evidence of any damages she suffered or loss of any benefit to which she 

would be entitled that were caused by the Defendants. Damages for purported mental, 

physical and emotional pain and suffering experienced by Cramton was never calculated 

or disclosed in her mandatory disclosures. Cramton cannot present evidence about 

damages at trial based on claims of mental, physical and emotional pain and suffering she 

purportedly experience but did not disclose in her MIDP in relation to those counts. Rule 

37 bars a party from introducing an undisclosed claim or new theories of damages at trial 

unless they can show the failure to disclose was substantially justified or harmless. See, 

Fed. R. Civ. P. 37(b)(2), (c)(1); See also, Yeti by Molly, at 1106. Cramton is barred from 

adding a new claim or theory of damages by Rule 37 and General Order 17-08(A)(4), (8) 

and (B)(4). For that reason, Cramton is also not entitled to punitive damages under Count 

X. Further, absent evidence of an intent to deceive and an “evil mind” to harm Cramton, 

she is not entitled to punitive damages. Rowe v. Bankers Life & Cas. Co., 2008 WL 

5156077, at *9 (D. Ariz. Dec. 9, 2008).

w. Whether Keely and ECH intended that Cramton rely on the information 

provided and that they provided it for the purpose specifically of making a decision 

about whether to resign based on Kahala’s intentions.

Plaintiff: Plaintiff believes that Keely, as an agent of ECH, intended that Cramton 

rely on the information she provided to Cramton in her September 18, 2017 telephone call 

that the Kahala deal was off the table. Plaintiff believes Keely made such a representation 

intending for Cramton to rely on it, and resign, given that Cramton was not making any 

wages, and thus had no incentive to stay on board with the company if there was no deal on 

the table. Ms. Newman was well aware of this fact.

Defendants’ Contentions (ECH and Keely): Cramton’s beliefs are not evidence 

sufficient to carry her burden of proof in this case. Cramton was paid $70,140.89 for less 

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than 9 months of service in 2017. There was no actual reason not to “stay on board” if there 

was no Kahala deal because there was a Due North deal and other potential buyers waiting 

in the wings. Cramton’s stated reason for resigning is that she was just hanging on waiting 

for Sale Proceeds – if so, then the incentive she had was to “stay on board” and wait for any 

one of the potential buyers to negotiate and close on a deal. Cramton has the burden to 

establish that Keely and ECH intended Cramton to rely on the purported statements for the 

purpose of Cramton making an employment decision to resign based on what Kahala 

intended to do in the future. On September 18, 2017 there was no transaction between 

Cramton or either Defendant and no transaction between either Defendant and Kahala. 

Keely and ECH did not know Cramton was even contemplating resignation from GFL. No 

information was given to Cramton for her benefit or guidance in the “transaction” with 

Kahala specifically even assuming that one telephone conversation during which an offer 

was rejected could reasonably be considered a transaction or for the purpose of making a 

decision of whether to resign or not based on Kahala’s intentions specifically. Cramton has 

not proffered any evidence that Keely knew that Cramton would resign if Kahala 

specifically did not say on September 18, 2017 that they would one day buy the Grabbagreen 

brand nor is there any evidence that Keely intended to provide information to Cramton to 

influence her decision to resign given she had no reason to think one was connected to the 

other. It was not foreseeable that Cramton would receive information about Kahala 

specifically and then resign choosing not stay until another deal was done with Due North 

or another party even if the buyer was not Kahala. 

x. Whether Keely and ECH exercised reasonable care in obtaining or 

communicating information.

Plaintiff: Plaintiff believes Keely, as an agent of ECH, did not exercise reasonable 

care in obtaining or communicating the information from the September 18, 2017 Kahala 

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call. According to the Kahala witnesses, the deal was 100% on the table; thus Keely failed 

to exercise reasonable care when she represented otherwise. 

Defendants’ Contentions (ECH and Keely): The inquiry here is not what Cramton 

purports that the Kahala witnesses knew internally or what Kahala intended internally. The 

inquiry is what Keely and Price were told and led to believe on the September Kahala Call. 

Keely relayed complete, truthful and accurate information to Cramton about the September 

Kahala Call and her continuing intention to sell the Grabbagreen brand. Keely had no 

additional information to provide and did not provide any information for the purpose of 

Cramton making a decision to resign. There was no connection between Cramton’s decision 

to resign or not resign, on the one hand, and Cramton’s lack of a right to receive Kahala 

Sale Proceeds, on the other hand. The information relayed by Keely to Cramton from the 

September Kahala Call was truthful and complete as confirmed by other participants in the 

call and Griffin who was present during the call. Keely exercised reasonable care in 

obtaining and communicating information to Cramton and she had no reason to know that 

Cramton intended to use that information to make a decision to resign.

y. Whether Cramton was at fault and was negligent by resigning on 

September 24, 2017.

Plaintiff: Plaintiff contends she was not contributorily negligent by separating 

her employment on September 24, 2017. She had every right to rely on her boss’ 

representations as to the status of the Kahala deal following a call where she was in the dark. 

Plaintiff also notes this defense is only applicable to Defendants’ negligent 

misrepresentation claim: not Plaintiff’s claims for unpaid minimum wages, breach of the 

implied covenant, or fraud. Defendants also did not raise this as an affirmative defense and 

this defense has thus been waived. E.g. Docket 42, 95. 

Defendants’ Contentions (ECH and Keely): This affirmative defense applies to all 

counts and is set forth in Dkt. 95 at § 174. Cramton had no right, and in fact did not, rely 

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on any statements made by Keely. Rather, Cramton had unfettered access to Wuycheck and 

in fact, contacted Wuycheck before resigning. To the extent Cramton could somehow have 

suffered damages in relation to completely discretionary payments (within Keely’s

discretion) based on unvested, forfeitable units with respect to which Cramton substantially 

failed to fulfill her specific obligation of remaining employed for an additional 4 years, 2 

months and 5 days, Cramton’s damages were caused or contributed to by her own acts, 

omissions and wrongful conduct and not caused by the Defendants. If Cramton could suffer 

the damages claimed in relation to Sales Proceeds (she could not), she caused her own 

damages by affirmatively inquiring of Kahala directly and just not waiting a few hours to 

connect on the telephone. Aside from going directly to Kahala, Cramton had other easily 

accessible sources of information and she just did not bother. 

z. Whether Cramton was at fault for her own alleged harm because of her 

misconduct following her resignation.

Plaintiff: Plaintiff contends she was not contributorily negligent by separating her 

employment on September 24, 2017. She had every right to rely on her boss’ 

representations as to the status of the Kahala deal following a call where she was in the dark. 

Plaintiff also notes this defense is only applicable to Defendants’ negligent 

misrepresentation claim: not Plaintiff’s claims for unpaid minimum wages, breach of the 

implied covenant, or fraud. See A.R.S. § 12-2506. Defendants also did not raise this as an 

affirmative defense and this defense has thus been waived. E.g. Docket 42, 95. 

Defendants’ Contentions (ECH and Keely): This affirmative defense applies to all 

counts and is set forth in Dkt. 95 at § 174. Cramton had no right, and in fact did not rely on 

any statements made by Keely. Rather, Cramton had unfettered access to Wuycheck and 

in fact, contacted Wuycheck before resigning. Keely’s alleged representations on 

September 18, 2017 could not have been the cause of Cramton’s resignation because before 

she resigned, Cramton knew and understood she was not entitled to Sale Proceeds from 

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Kahala or any other buyer unless Keely voluntarily agreed to exercise discretion and cause 

ECH to make payments. Keely’s decision to exercise her buyout right was made over a 

month after Cramton’s resignation from GGS and then GFL. After she resigned, Cramton 

continued to be a member for over a month and during that time, Cramton refused to 

cooperate in transitioning work to other employees, breached the Operating Agreement, 

destroyed company property by tampering with and deleting company data from a company 

computer, iPhone and iCloud account in violation of state and federal anti-computer 

tampering civil and criminal laws, breached the Key Employee and Confidentiality 

Agreement, stole company property and data, repeatedly and falsely claimed she had not 

stolen company property, interfered with franchisees and area developers, badmouthed the 

company and Keely and interfered with company operations. To the extent her claims based 

on discretionary payments within the discretion of Keely is even remotely a legally 

cognizable claim, it is Cramton’s own misconduct aimed at harming Keely and the company 

is the reason she lost the ability to get Keely to exercise that discretion. Plaintiff is at fault 

for her own behavior that resulted in the exercise of the buyback right. 

aa.If liability were assessed under Counts VII, IX or X, how should damages 

be calculated.

Plaintiff: Plaintiff’s position is that she is entitled to the fair market value of her 

membership interest as established by the Kahala sale. This is simply taking 18.6% of the

$2.6 million sales proceeds.

Defendants’ Contentions (ECH and Keely): Cramton’s position is without merit and 

she has no evidence to support it. Cramton held only an 18.1% interest in relation to ECH 

when the Grabbagreen brand was sold. $2.6 million is not the amount of money that ECH 

received and cannot be a basis for damages. Cramton is not entitled to fair market value of 

an asset she never owned. Cramton misstates the applicable measure of damages. In 

addition, Cramton admitted that her claim is one based specifically on the Operating 

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Agreement and her claim that the Operating Agreement was violated because she did not 

receive Sale Proceeds. (Dkt. 50, at 3:27-4:1). Defendants made it clear that Cramton “was 

not entitled to any proceeds from the [Kahala] sale.” (Dkt. 50, at 4:11-4:12). Cramton’s 

counsel made a similar representation to Judge Rayes at the Rule 16 scheduling conference 

when he referenced the fact that Cramton’s “big dollar claim” related to the Operating 

Agreement. (Dkt. 89, at 12:7-12:17). As such, Cramton has admitted that this Court need 

not look any further than the unambiguous language of the Operating Agreement. The 

Operating Agreement does not provide for this calculation or any such payment under any 

circumstances. Cramton had no ownership interest or right to the “Kahala sale.” The 

“Kahala sale” does not reflect the fair market value of ECH or the unvested units in ECH 

Cramton once held. Cramton was not entitled to Sale Proceeds and failed to complete the 

required 5 years of employment to be entitled to anything under the Operating Agreement. 

The measure of damages in this case must be based on Cramton’s actual value in her 

unvested membership interests not the asset of ECH. The actual value of unvested units or

a potential discretionary payment of Sale Proceeds she had no right to receive at any relevant 

point in time was, and is, zero. If an employee has an unvested account balance in a 401(k) 

plan, for example, that account balance is worth zero to the employee if she resigns

prematurely. Cramton’s unvested units were worth zero to her because she resigned more 

than 4 years before completing the required employment period. Cramton had to remain 

employed for 5 years. She did not do so and she testified under oath she had no intention 

of doing so. She was not excused from this employment requirement under any provision 

of the Operating Agreement whether she was employed at the time of the closing of the 

Kahala acquisition or not. The actual value of her claims under Counts VII, IX and X were 

at resignation and are now zero. She received $1 for unvested units worth zero. Cramton 

failed to complete the required 5 years of employment – she completed only 10 months of 

that period. Cramton has the burden to prove that unvested units and a potential 

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discretionary payment was worth more than the $1 she received and the burden of proof 

that the value of ECH’s asset was somehow the value of unvested units – it was not. 

Cramton cannot carry this burden. Cramton cannot proffer any evidence of the value of 

unvested units and cannot offer any expert opinion to establish the value of unvested units. 

Cramton did not suffer compensatory damages under Counts VII, IX or X. 

Cramton has failed to provide a calculation of the value she claims of her unvested 

units in her Amended Complaint or in item 5 of her MIDP in relation to damages under 

Counts VII, IX and X and should be barred from springing an undisclosed damages 

calculation in trial. It appears that she thinks the purchase price Kahala paid ECH for 

ECH’s asset (i.e., the Grabbagreen brand) should be the value she receives not the actual 

value of her once held unvested units, specifically the unvested ECH units she once held. 

The price paid by Kahala for the Grabbagreen brand is the money actually received by 

ECH not the random numbers Cramton has thrown around for three years. On this point it 

is important to be specific. Cramton did not own any interest in the Grabbagreen brand 

and was not entitled to a payment from Kahala directly even if she remained employed 

through the closing date. ECH and its subsidiaries were the sole and exclusive owner of 

the Grabbagreen brand. ECH and its subsidiaries had the sole and exclusive right to the 

purchase price paid by Kahala. The Kahala acquisition was an asset purchase of the 

Grabbagreen brand from ECH. Kahala did not purchase the membership interests in ECH 

and thus, it made no difference whether Cramton was a member or not on the date of sale. 

Cramton, even if employed on that date, would not receive any money from Kahala and 

would only receive money or Sale Proceeds from ECH if Keely exercised discretion under 

the clear and unambiguous provisions of the Operating Agreement. 

Further, the value Cramton appears to suggest would not be the value she would get

even if we assumed arguendo that ECH received the Kahala purchase price and 

immediately liquidated (which it, in fact, did not do). Even if liquidated Cramton, like 

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Keely, would be bound to the application of all of the provisions of the Operating 

Agreement. Cramton’s apparent damages theory, ignores: (i) the plain language of the 

Operating Agreement entirely, (ii) the Arizona Limited Liability Company Act entirely,

(iii) transaction closing costs such as legal fees, consulting fees and accounting fees, etc. 

required under the Operating Agreement to be allocated amongst all members, (iv) all 

expenses of the business, including wage payment obligations for other employees 

(including the employees who did all the work for the last 6 months before the sale to get 

the deal done) required under the Operating Agreement to be allocated amongst all 

members, (v) all debts and obligations of the business, (vi) ECH’s right to provide for 

appropriate reserves against contingent liabilities, taxes and capital expenditures, and (vii) 

dilution provisions applicable to all members in relation to other unit holders like David 

Glines. 

Cramton’s damages calculation, if applied, would place Cramton in a superior and 

preferred position not only to the other members, but also to creditors. There is no basis in 

law or in fact to ignore the Operating Agreement, ignore the law, disregard ECH’s rights 

as an entity entirely by invading all of its underlying assets, provide Cramton with a 

valuation on her unvested units using the value of ECH’s asset rather than her once held 

unvested units, or provide her with all benefits of ownership with literally no expenses or 

other applicable obligations or contingent liabilities of the business while foisting all 

expenses, obligations and contingent liabilities onto ECH and Keely. Cramton had no right 

to a valuation that directly contradicts § 10.1(a) of the Operating Agreement or a valuation 

that is based on an asset that did not belong to her, i.e., the value of the Grabbagreen brand

that belonged exclusively to ECH and its subsidiaries. Further, Cramton had no liquidity 

rights at all and certainly not on unvested units and ECH, in fact, did not liquidate and 

continues its operations in other business lines it was entitled to develop and operate at all 

points in time.

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Further, currently a claim is now pending by a franchisee claiming $1 million dollars 

in relation to which ECH, at all moments in time, had a right to retain Sale Proceeds in 

reserve to provide for defense costs and to satisfy any liability. Cramton had, and has, no 

right whatsoever under the Operating Agreement or any law to foist liabilities onto ECH 

or Keely. This is especially true where the claim hinges on allegations of Cramton’s fraud 

in selling a franchise to that franchisee. ECH had and continues to have a right to reserve 

funds to address precisely that type of contingent liability. In fact, the Arizona Limited 

Liability Company Act prohibits Cramton from absconding with the money needed to 

address this claim leaving Keely to clean up her mess. Any recovery possible in this case 

should be offset by the cost and reserves against this contingent liability in that case as 

well. See also discussion on causation and damages in Section D.2.a. and D.2.d. below.

Mental, physical and emotional pain and suffering experienced by Cramton was 

never disclosed in her mandatory disclosures. Cramton cannot present evidence at trial 

based on claims of mental, physical and emotional pain and suffering she purportedly 

experience but did not disclose in her MIDP in relation to those counts. Rule 37 bars a 

party from introducing an undisclosed claim or new theories of damages at trial unless they 

can show the failure to disclose was substantially justified or harmless. See, Fed. R. Civ. 

P. 37(b)(2), (c)(1); See also, Yeti by Molly, at 1106. Cramton is barred from adding a new 

claim or theory of damages by Rule 37 and General Order 17-08(A)(4), (8) and (B)(4). 

bb.Whether Cramton failed to mitigate her damages.

Plaintiff: Mitigation does not apply. Short of immediately resigning, Cramton could not 

have done anything to mitigate the failure to pay minimum wages. As to the claims related 

to her membership interest, there was no action that Cramton could have taken that would 

have recouped the value of her membership interest other than filing this action.

Defendants’ Contentions: Cramton had a duty to mitigate her damages and failed to do so. 

Cramton’s claims are barred by her failure to properly and adequately mitigate her 

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damages, if she even had any. Cramton was paid over $70,140.89 – vastly more than 

minimum wages. In fact, she received a wage payment of $20,000 just 2 weeks prior to 

her resignation. Cramton had numerous options to mitigate. She could have spoken to 

Keely on September 25, 2017 and said she wanted to continue to work. Keely wanted her 

to continue her employment. Cramton refused to speak to Keely on September 25, 2017. 

Keely had no idea why. She could have given GFL its property back – intact – as requested 

in writing by the company. She also could have given a 2-week notice and transitioned 

work in the usual manner anticipated from all employees and certainly from the second in 

command and a continuing member at that time. She could have resigned and not contacted 

GFL’s franchisees and area developers to cause as much harm as possible – as a member. 

She could have refrained from badmouthing and disparaging Keely and the company – as 

a member. She could have honored one of the agreements she had with the company –

one. She could have chosen not to materially breach the Operating Agreement. The buyout 

was exercised over 5 weeks after her resignation – 5 weeks of misconduct that led to the 

exercise of the buyout right. Cramton could have made a lot of better choices to mitigate.

cc. Whether fees costs and damage are owed to Defendants.

Plaintiff: Award of attorneys’ fees is made at the conclusion of the case in accordance with 

LRCiv 54.2. This is not a decision for the jury. The “successful party” determination 

must be made based on “totality of the litigation,” including the dismissed counterclaims 

were counterclaimants sought over $1 million in damages. Schwartz v. Farmers Ins. Co. 

of Arizona, 166 Ariz. 33, 800 P.2d 20 (App. 1990). The Ninth Circuit has held that A.R.S. 

§ 12-349 does not apply in federal court. In re Larry’s Apartment, LLC, 249 F.3d 832, 

837-39 (9th Cir. 2001).

Defendants’ Contentions: Defendants suffered substantial harm as a result of Cramton’s 

conduct and their advisors will support the basis for the counterclaims. Defendants are 

entitled to reasonable attorneys’ fees pursuant to the Operating Agreement under A.R.S. 

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§§ 12-341.01, 12-349, and other applicable law. Defendants are entitled to damages 

pursuant to A.R.S.§ 12-349 and other applicable law for this action being brought without 

reasonable investigation and in bad faith. Defendants are entitled to their taxable costs and 

such other relief deemed just.

3. The following are the issues of law to be determined:

a. Parol Evidence Rule: Under Arizona law, the parol evidence rule excludes the 

admission of evidence that varies from or contradicts the written terms of a contract. The 

Arizona Supreme Court ruled that the main purpose of contract interpretation is to enforce 

the intent of the parties. Taylor v. State Farm Mutual Automobile Ins. Co., 175 Ariz. 148, 

152 (1993). Where the language is clear and unambiguous, that language controls, and “it 

is not within the province of the court to alter, revise, modify, extend, rewrite or remake an 

agreement.” Shattuck v. Precision-Toyota, Inc., 115 Ariz. 586, 588 (1977). The ECH 

Operating Agreement is unambiguous in providing expressly that Cramton’s interest was 

subject to the condition that Cramton complete 5 years of employment without voluntarily 

resigning “for any reason,” a period that ends on November 29, 2021 – no exceptions. (See, 

§9.3(b) of the Operating Agreement). All extrinsic evidence or testimony that would 

purport to alter, revise, modify, extend, rewrite, remake or eliminate the 5-year employment

requirement or any other provision in the Operating Agreement is inadmissible parol

evidence that must be excluded. The ECH Operating Agreement is also unambiguous in 

providing that no member has any right or entitlement to the proceeds of the sale of any of 

ECH’s assets or capital proceeds. (See, §3.6 of the Operating Agreement). For example, 

under §3.6, whether any capital proceeds from the Kahala deal or distributions of ECH 

assets would occur rests solely and exclusively within the discretion of the majority of the 

members. Cramton was not a majority. Thus, any extrinsic evidence or testimony to the 

effect that Cramton had a right or entitlement to cash, right or entitlement to Kahala sale 

proceeds or capital proceeds, a mandatory buyout, fair market value, valuation using the 

Kahala purchase price of ECH’s asset and all similar such statements and allegations that 

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have or may be proffered by Cramton contradict the clear and unambiguous terms of the 

ECH Operating Agreement and are not admissible under the parol evidence rule. 

Counts VII, IX and X are based on inadmissible parol evidence. Cramton even 

admitted that if the Court excludes parol evidence, that “would effectively dispose of 

Cramton’s claims.” (Dkt. 279, at 1:28-2:1). Cramton is correct, her claims directly 

contradict the unambiguous language in the Operating Agreement given that she is seeking 

money she never had a right to receive and as a result, they are all unsustainable claims. 

Count VII is a contract claim and Counts IX and X are torts alleging the same contract 

damages asserted under Count VII. All three assert that Cramton’s damages are essentially 

18.6% (incorrect percentage) of the purchase price (using an incorrect price) paid by Kahala 

to ECH (ignoring that ECH is a separate entity entitled to retain its cash and operate its 

business without invasion of its underlying assets). Cramton admitted that her claim is one 

based specifically on the Operating Agreement and her claim that the Operating Agreement 

was violated because she did not receive Sale Proceeds. (Dkt. 50, at 3:27-4:1). Defendants 

made it clear that Cramton “was not entitled to any proceeds from the [Kahala] sale.” (Dkt. 

50, at 4:11-4:12). Cramton’s counsel made a similar representation to Judge Rayes at the 

Rule 16 scheduling conference when he referenced the fact that Cramton’s “big dollar

claim” related to the Operating Agreement. (Dkt. 89, at 12:7-12:17). As such, Cramton has 

admitted that this Court need not look any further than the unambiguous language of the 

Operating Agreement. Cramton’s damages calculation contradicts the unambiguous 

accounting and tax allocation provisions of the Operating Agreement requiring that 

expenses, liabilities and contingent liabilities be allocated to all ECH units, including those 

formerly held by Cramton. She ignores the fact she had no liquidity rights and uses the 

value of ECH’s asset instead of the value of the unvested units she once held. Nothing 

under the Operating Agreement would provide Cramton with a basis to shift all of the costs, 

expenses and liabilities of ECH to Keely. 

Further, under the unambiguous provisions in the Operating Agreement, Cramton 

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would also not have a right to Kahala Sale Proceeds if she remained employed until 

November 29, 2021. Rather, § 9.3(c) of the Operating Agreement would apply if Cramton 

worked the required 5 years and then resigned after November 29, 2021. § 9.3(c) of the 

Operating Agreement unambiguously requires that fair market value of the units be 

determined based on an independent, third party appraisal “taking into account the lack of 

control and the inherent lack of liquidity of non-public minority equity interests.” In 

addition, the appraised value of the units in accordance with § 10.1(a) would be paid in 

accordance with Article 11 of the Operating Agreement with a payment of thirty percent 

(30%) of the determined value and the remainder paid in eighteen (18) equal or substantially 

equal installments beginning on the first day of the second month after the initial thirty

(30%) is paid. Under the unambiguous provisions of the Operating Agreement, there is no 

circumstance whatsoever under which Cramton would vest in November 2021 (had she 

chosen not to voluntarily resign) and get Kahala Sale Proceeds or a valuation of units based 

on the Kahala purchase price paid in 2018 more than 3 years earlier than the first date 

Cramton could have vested and had a right to receive the value of the ECH units had she 

continued her employment. Cramton’s claims, damages and damage computations are 

based on inadmissible evidence offered to contradict the unambiguous provisions of the 

Operating Agreement.

Keely has endured three years as a defendant to fraud and negligent 

misrepresentation claims and suffered meritless and substantial financial and reputational 

harm based on unvested forfeited units (with more than 4 years of required employment 

until the vesting date measured from the date of Cramton’s resignation) where the damages 

for both claims are based on a purported right to a payment that is expressly, unequivocally, 

unambiguously and entirely within Keely’s own discretion as the majority of members and 

where Cramton has provided no citation to a provision in the Operating Agreement, no 

citation to any law and no facts that support her claim that she was entitled to receive Kahala 

Sale Proceeds despite the provisions in the Operating Agreement. This issue of law was 

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not decided or waived.

b. Implied Covenant of Good Faith and Fair Dealing: The unambiguous 

provisions of § 3.6 of the Operating Agreement limits the circumstances under which 

members could receive payments from ECH to the exercise of discretion by the majority of 

members. The rights and benefits bargained for under the Operating Agreement do not 

include a right or benefit to Sale Proceeds, to proceeds of a capital event, to a fair market 

value buyout by Keely, or to distributions or other payments of cash under the Operating 

Agreement. Cramton held unvested units subject to a very specific requirement: she had 

to work for five (5) years (until November 29, 2021) to get the value of those units. This 

requirement was imposed because ECH wanted Cramton committed to work for ECH’s 

business lines and for 5 years so she could support the business while Keely divided her 

time among the business, supporting her spouse who had recently been diagnosed with 

terminal cancer and taking over essentially full responsibility for their two 6 year old 

children who were living in a different state than where the Grabbagreen brand was being 

operated. The benefit and rights sought by Cramton are outside the bargained-for benefits 

and rights expressly and unambiguously stated in the Operating Agreement. As a matter of 

law, Count VII must fail because Cramton was not entitled to receive any Kahala Sale 

Proceeds, profit from any increase in value of the unvested units or any cash whatsoever 

under § 3.6 of the Operating Agreement and after having completed only 10 months of 

service. Cramton abandoned the business and Keely with 4 years, 2 months and 5 days of 

the unambiguous 5-years of employment requirement remaining. This issue of law was not 

waived. Cramton repeatedly and deliberately misrepresented the terms of the Operating 

Agreement claiming, without any support, evidence or basis, that she would receive sale 

proceeds if she did not resign – that is absolutely false.

c. Economic Loss Rule: Counts IX and X are barred by the economic loss rule 

(“ELR”) under Arizona law. Arizona courts have long recognized that the ELR applies to 

tort claims, including fraud and negligent misrepresentation. Salt River Project Agricultural 

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Improvement and Power Dist. v. Westinghouse Elec. Corp., 143 Ariz. 368 (1984); Flagstaff 

Affordable Housing Limited Partnership v. Design Alliance, Inc., 223 Ariz. 320 (2010); 

Cook v. Orkin Exterminating Co., 227 Ariz. 331, 332, ¶4, 335, ¶20, (App. 2011). The 

Supreme Court of Arizona in Flagstaff as late as 2010 confirmed that the ELR is recognized 

and applicable to bar torts under Arizona law, including fraud and negligent 

misrepresentation, using a case-specific approach. As recently as 2012, Cramton’s counsel, 

Todd Feltus and the law firm of Kercsmar & Feltus PLLC successfully argued on behalf of 

the Feltus law firm that the ELR barred a fraud claim against it under Arizona law and relied 

entirely on Flagstaff and Cook. Maricopa Investment Team, LLC and Kercsmar & Feltus 

PLLC v. Johnson Valley Partners LP., 2012 WL 5894849, at *1, ¶¶7-12 (App. 

2012)(holding that the ELR barred fraud and misrepresentation claims); Cook at 332, ¶4, 

335, ¶20. Arizona state court judges consistently recognize that the ELR applies to bar 

fraud and negligent misrepresentation claims. As such, Counts IX and X should be barred 

in this case.

Having chosen to avail herself of the benefits of member status, she cannot resort to 

tort remedies, as through misrepresentation and fraud claims here, to obtain a different 

remedy than what she bargained for when she became a member. Cramton admitted that 

her claim is one based specifically on the Operating Agreement and her claim that the 

Operating Agreement was violated because she did not receive Sale Proceeds. (Dkt. 50, at 

3:27-4:1). Defendants made it clear that Cramton “was not entitled to any proceeds from 

the [Kahala] sale.” (Dkt. 50, at 4:11-4:12). Cramton’s counsel made a similar 

representation to Judge Rayes at the Rule 16 scheduling conference when he referenced the 

fact that Cramton’s “big dollar claim” related to the Operating Agreement. (Dkt. 89, at 

12:7-12:17). As such, Cramton has admitted that this Court need not look any further than 

the unambiguous language of the Operating Agreement. Cramton’s effort to subvert and 

get around the terms of, or rewrite, the Operating Agreement as if she had a right to any 

cash and as if she suffered damages simply because she says so must fail and efforts to get 

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around the terms of the Operating Agreement are barred. Counts IX and X are also barred 

as a matter of law under the economic loss rule recognized under Arizona law in Arizona 

courts. Federal courts are bound to follow the substantive law of the state in which it sits 

on state claims; consequently, state courts’ interpretations of state law are binding on federal 

courts. Sherman v. PremierGarage Systems, LLC, 2010 WL 3023320, at *4-5 (D. Ariz. 

2010), citing, Flagstaff Affordable Housing Limited Partnership v. Design Alliance, Inc., 

223 Ariz. 320 (2010); See, also, Kercsmar & Feltus PLLC v. Johnson Valley Partners LP., 

2012 WL 5894849, at *1, ¶¶7-12 (App. 2012). The District of Arizona held that the 

economic loss rule applies where the parties had an agreement to “uphold the expectations 

of the parties by limiting [the] plaintiff[s] to contractual remedies for loss of the benefit of 

the bargain” and dismissed a fraud and negligent misrepresentation claims. Sherman, at 

669. Cramton had, and continues to have, no reasonable basis in law or in fact to assert 

Counts VII, IX or X. This issue of law was not waived. Cramton repeatedly and 

deliberately misrepresented the terms of the Operating Agreement claiming, without any 

support, evidence or basis, that she would receive sale proceeds if she did not resign – that 

is absolutely false.

d. Causation and Damages /Counts VII, IX and X: 

Cramton is unable to meet her burden of proof with respect to required elements of her 

claims, including Kahala Sale Proceeds as purported damages under Counts VII, IX and X or 

that the Defendants caused her to lose Sales Proceeds she purportedly had a right to receive. 

Cramton has no evidence that unvested units should be valued as she seems to claim. She has 

no expert to establish her claimed value. (See section above on actual value of unvested units). 

Cramton is also unable to provide this Court with any basis for claiming that she had a right to 

Kahala Sale Proceeds under the Operating Agreement. Cramton knew that ECH had other 

business lines operating and they would continue after the Kahala deal closed. Cramton knew 

she had no right to Sale Proceeds before she chose to resign. Defendants ECH and Keely could 

not cause Cramton to miss out on a Kahala payout resulting in harm under Counts VII, IX or X 

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where the unambiguous provisions of the Operating Agreement make it perfectly clear that 

Cramton was not entitled to Sale Proceeds or a Kahala payout. Rather, Cramton was required 

to work 5-years to be entitled to any money or value in relation to the unvested ECH units. § 

9.3(c) of the Operating Agreement would apply if Cramton worked the required 5 years and 

then resigned after November 29, 2021. Cramton ignores the fact that the value of unvested 

units is zero. § 9.3(c) of the Operating Agreement unambiguously requires that fair market 

value of the units be determined based on an independent, third party appraisal “taking into 

account the lack of control and the inherent lack of liquidity of non-public minority equity 

interests.” In addition, the appraised value of the units in accordance with § 10.1(a) would 

be paid in accordance with Article 11 of the Operating Agreement with a payment of thirty 

percent (30%) of the determined value and the remainder paid in eighteen (18) equal or 

substantially equal installments beginning on the first day of the second month after the 

initial thirty (30%) is paid. Further, Cramton’s damages calculation ignores the provisions of 

the Operating Agreement requiring that all ECH units be adjusted for all expenses of the 

business including all transactions costs for the Kahala sale, all expenses, liabilities and 

contingent liabilities and obligations of the ECH. In no event under the unambiguous 

provisions of the Operating Agreement would all of the expenses, liabilities and contingent 

liabilities of ECH be allocated only to Keely’s units. 

Mental, physical and emotional pain and suffering experienced by Cramton was 

never disclosed in her mandatory disclosures. Cramton cannot present evidence at trial 

based on claims of mental, physical and emotional pain and suffering she purportedly 

experience but did not disclose in her MIDP in relation to those counts. Rule 37 bars a party 

from introducing an undisclosed claim or new theories of damages at trial unless they can 

show the failure to disclose was substantially justified or harmless. See, Fed. R. Civ. P. 

37(b)(2), (c)(1); See also, Yeti by Molly, at 1106. Cramton is barred from adding a new 

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claim or theory of damages by Rule 37 and General Order 17-08(A)(4), (8) and (B)(4). This 

issue was not decided or waived.

Cramton had a duty to mitigate her damages, something she failed to do. Her claims 

are barred by her failure to properly and adequately mitigate her damages, if she even had 

any.

e.Wages under Count IV

A.R.S. § 23-362 defines “wages” for purposes of the Arizona Minimum Wage Act (§§ 

23-362 – 23-365) to include all monetary compensation due to an employee by reason of 

employment, including an employee’s commissions, but not tips or gratuities. This definition 

includes employer subsidized health insurance premiums, employer paid SEP retirement 

payment, employer paid employee monthly car payments during employment and employer 

paid employment tax gross ups – all are forms of monetary compensation due an employee by 

reason of employment. Monetary compensation means cash or its equivalent due to employee 

by reason of employment. A.C.C. R20-5-1202. The Arizona Minimum Wage Act was enacted 

by Arizona voters who approved an initiative in the November 2006 election. As an initiative 

approved by the voters, the law cannot be amended by the Legislature except to further its 

purpose and minimum wages are determined under A.R.S. §§ 23-362 – 23-365. All of these 

additional monetary compensation payments were made to Cramton by reason of her 

employment with GFL. In addition, any award of damages under Counts VII, IX and X (no 

damages should be awarded) would entitle GFL to include the full cash value of Cramton’s 

equity compensation as wages under the Arizona Minimum Wage Act in 2017 as well. This 

issue was not decided or waived. Cramton would like to bar this argument because Count IV 

is eviscerated by the fact that Cramton was paid so much money in 2016 and 2017. Cramton 

has no basis to refute this proper definition of wages under the Arizona Minimum Wage Act 

nor does she have a basis to refute the substantial money she was paid under this definition.

f. Officer Minimum Wage Claims and Pay Timing

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Courts have rejected minimum wage claims by officers where their salary, when 

averaged across their total time worked, still payed them above minimum wage. See, Adair 

v. City of Kirkland, 185 F.3d 1055, 1063 (9th Cir. 1999), citing, Hensley v. MacMillan 

Bloedel Containers, Inc., 786 F.2d 353, 357 (8th Cir. 1986). With an average workweek of 

more than $3,400 in pay in 2016 and more than $480 in pay in 2017, Cramton received 

more than the minimum wage. Further, parties may legally contract around the default 

payment requirements of A.R.S. § 23-351. Orfaly v. Tucson Symphony Socy., 99 P.2d 1033-

34 (Ariz. App. 2004). Such an agreement to alter when wage payments become due and 

payable is legally permissible. Id. It is inconsequential whether Cramton received pay 

every two weeks or she agreed to vary the timing. This issue was not decided or waived.

g. Plaintiff Failed To State a Claim Upon Which Relief Can Be Granted

Plaintiff failed to state a claim upon which relief can be granted under Counts VII, 

IX and X. § 9.3(b) of the Operating Agreement required Cramton to remain employed for

5 years to be entitled to any payment of any money which would end on November 29, 

2021. § 3.6 of the Operating Agreement provides that all payments prior to that time would 

be within the discretion of the majority member. Cramton was not entitled to any payment 

of Sale Proceeds from the Kahala acquisition. The Sale Proceeds were not hers. The Sale 

Proceeds belonged exclusively to ECH and its subsidiaries. It was not her money. It was 

not something she had a right to or could compel ECH to pay her. She could not be tricked 

or duped or defrauded out of something that was not hers. The Defendants could not 

prevent her from receiving something that she had no right to receive. The Defendants 

could not cause her damages or harm where the damages and harm she claims would 

require Keely to make a discretionary payment. Discretionary payments are not rights or 

benefits that one can compel another to make. 

Cramton had no right to Sale Proceeds and therefore, could not suffer pecuniary loss 

because she did not receive a discretionary payment she had no right to receive, i.e., Sale 

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Proceeds. Fraud or negligent misrepresentation is only a legal cause of a pecuniary loss 

resulting from an action in reliance upon it if, but only if, the loss might reasonably be 

expected to result from the reliance. Here the “loss” was a payment of Sales Proceeds that 

was completely within Keely’s discretion. Cramton could not resign from employment in 

reliance on Keely’s purported statements and in so doing, convert a discretionary payment 

within Keely’s discretion into a pecuniary loss with respect to which Keely can now 

somehow be stripped of her discretion and compelled to pay. Reliance on the purported 

statements cannot be reasonable where Cramton had no right to the Sale Proceeds and it 

also cannot cause a pecuniary loss of a discretionary payment Cramton had no right to 

receive. Cramton must prove not only that, had she known the truth (which she did), she 

would not have resigned (she testified she would have resigned before November 29, 

2021), but in addition that the purported untruth was in a direct and proximate way 

responsible for her losing money, i.e., the Sale Proceeds. This point is very straightforward, 

Cramton would not receive money or the Sale Proceeds had she not resigned because no 

such payment was required under § 3.6 of the Operating Agreement. Further, the person 

holding the discretion is Keely. Simply put, there is no “but for” and proximate causation 

to support Cramton’s claims and they must fail as a matter of law.

Defendants did not cause any harm and Cramton did not suffer any damages under 

Counts VII, IX or X. As such, Cramton cannot establish the requisite elements of those 

counts, and with respect to Count X, Cramton certainly cannot establish these necessary 

elements by clear and convincing evidence nor should her claim for punitive damages even 

be entertained. See also, section above on measurement of damages and Section D.2.d. 

below. This issue was not decided or waived.

h. Cramton’s Response:

Plaintiff: It is Plaintiff’s position that issues of law were determined at summary 

judgment stage. Plaintiff does not dispute the legality of the parol evidence rule per se, the 

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implied covenant of good faith and fair dealing (of which no law is cited below by 

Defendants), the economic loss rule per se, or that damages and causation are elements of 

Plaintiff’s claims. However, the parol evidence rule does not apply as there is no claim for 

breach of contract remaining in this case. Similarly, there is no longer any dispute about 

the economic loss rule as that argument was disposed of at summary judgment. The court 

already determined, or Defendants’ had the opportunity to argue at summary judgment, 

whether Defendants’ arguments, based on those laws, had merit. The court found they 

either (1) did not, or (2) did not make a determination as Defendants waived those issues. 

This pre-trial memo is not the proper time or place to be making new legal arguments. The 

purpose is to narrow the evidence for trial. 

Plaintiff disputes that the Arizona minimum wage laws including within their definition of 

wages “employer subsidized health insurance premiums, employer paid SEP retirement 

payment, employer paid employee monthly car payments during employment and employer 

paid employment tax gross ups.” Defendants offer no support for this assertion as there is none. 

Plaintiff seeks to bar Defendants from making this argument at trial.

As to Defendants’ claim that Plaintiff failed to state a claim for relief, this is not a proper 

issue for trial. Defendants did not file a motion to dismiss (this standard under Rule 12) and 

this is not a proper affirmative defense. E.g. Hernandez v. Cty. of Monterey, 306 F.R.D. 279, 

290 (N.D. Cal. 2015) (failure to state a claim is not a proper affirmative defense, and this affirmative

defense is stricken).

E. WITNESS LIST

Plaintiff’s List

1. Witnesses Who Will be Called at Trial

Defendants general objection: Defendants object to any witness testifying to events outside 

of their personal knowledge, and reserves all foundation, relevance, improper character 

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testimony, and all other objections. Defendants also include the below specific objections 

to Cramton’s witnesses.

a. Kim Cramton - Ms. Cramton is expected to testify broadly regarding all 

aspects of her claims and Defendants’ and arguments. She is the Plaintiff in this case. She 

has personal knowledge of the events as well as the documents and communications at issue.

Plaintiff’s disclosures regarding Ms. Cramton are as follows: Ms. Cramton is a plaintiff in 

this action. She has broad knowledge regarding all the allegations in the pleadings, her 

employment with the Grabbagreen brand, her ownership interest in Eat Clean Holdings,

LLC, the wages and other payments she is owed by the Defendants, her constructive 

discharge from Grabbagreen, her interactions with the Newmans and their exacerbation of 

Ms. Cramton’s medical issues, the scope of the release she signed regarding Gulf Girls 

Squared, her activities and employment since her constructive termination from 

Grabbagreen Franchising LLC, her disability, medical condition, and requests for 

accommodations/leaves of absence, Defendants’ joint employment/ownership, broad 

knowledge about all of her claims and her defenses to the counterclaims, her damages, all 

of Defendants’ counterclaims and her defenses thereto, everything she testified to at her 

deposition, and all documents and communications she was a party or privy to

Defendants’ Objections: Defendants object to Cramton’s testimony that 

exceeds the scope disclosed in her MIDP and further object to any testimony about 

constructive discharge, purported exacerbation of her medical issues, her disability, her 

medical condition, requests for accommodations/leaves of absence, 

joint/employment/ownership – all are irrelevant to the remaining claims and more prejudicial 

than probative. Defendants’ object to the characterization of Defendants conduct as “abuse,” 

“abusive”, “fraud,” or “fraudulent,” etc. as these are conclusory legal statements. 

b. Laura McCormack - Ms. McCormack is Plaintiff’s spouse. She also worked 

at Grabbagreen. She is expected to testify broadly regarding Ms. Cramton’s minimum wage 

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claim (and lack of wages) as she has personal knowledge of the hours Plaintiff worked, the 

wages Plaintiff was not paid (as the two share finances), her communications with Plaintiff 

surrounding the September 18, 2017 telephone call between Keely Newman and Plaintiff, 

Plaintiff’s damages, including emotional distress damages as she was acutely aware of 

Plaintiff’s emotional distress as her spouse, Plaintiff’s claim for punitive damages to the 

extent Ms. McCormack witnessed Keely Newman’s misconduct, and any defenses of which 

Ms. McCormack has personal knowledge of. Ms. McCormack has been broadly disclosed 

as follows: 

Ms. McCormack is a counterdefendant in this action. Ms. McCormack has broad 

knowledge regarding all the allegations in the pleadings, Ms. Cramton’s constructive 

termination from Grabbagreen Franchising LLC, her interactions with the Newmans and 

their exacerbation of Ms. Cramton’s medical issues, her defenses to the counterclaims, Ms. 

Cramton’s disability, Defendants’ failure to accommodate Ms. Cramton, the release she

signed with Gulf Girl Squared, her and Ms. Cramton’s lack of disparagement, and all 

documents and communications she was a party or privy to. 

Defendants’ Objections: Defendants object to testimony that exceeds the 

scope disclosed in Cramton’s MIDP and further object to any testimony about constructive 

discharge, purported exacerbation of Cramton’s medical issues, disability, medical condition, 

requests for accommodations/leaves of absence, joint/employment/ownership – all are 

irrelevant to the remaining claims and more prejudicial than probative. Defendants’ object to 

the characterization of Defendants conduct as “abuse,” “abusive”, “fraud,” or “fraudulent,” 

etc. as these are conclusory legal statements. This witness had no involvement or personal 

knowledge with the allegations in Counts IV, VII, IX or X, no involvement with the Operating 

Agreement, no involvement with discussions involving Kahala and no involvement with the 

September 18, 2017 telephone call.

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c. John Wuycheck - Mr. Wuycheck is a representative of Kahala and was on a 

telephone call with Keely Newman right before Keely had the September 18, 2017 

telephone call (the call at issue) with Ms. Cramton. Mr. Wuycheck has broad knowledge 

regarding the status of the Kahala deal at the time, testified extensively regarding same at 

his deposition, and is expected to testify regarding the details of the Kahala deal. His 

testimony relates to Plaintiff’s claims for breach of the implied covenant and fair dealing, 

fraud, and negligent misrepresentation. Mr. Wuycheck does not have any personal 

knowledge of Plaintiff’s minimum wage claim. Mr. Wuycheck has been broadly disclosed 

as follows: 

Mr. Wuycheck is the Senior Vice President of Franchise Development at Kahala Brands. 

He has knowledge regarding everything he testified to at his deposition, Kahala’s 

acquisition of Grabbagreen and the status of those negotiations at the time of Ms. 

Cramton’s constructive discharge which relate to Ms. Cramton’s Counts V-VIII, Ms. 

Cramton’s hiring by Kahala, Ms. Cramton’s current job responsibilities at Kahala, Ms. 

Cramton’s defenses to Counterclaims I and II, Ms. Cramton’s lack of involvement in and 

knowledge of the Kahala acquisition of Grabbagreen and related negotiations, and all 

documents and communications he was a party or privy to. 

Defendants’ Objections: Defendants object to testimony that exceeds the 

scope disclosed in Cramton’s MIDP and further object to any testimony about Cramton’s now 

dismissed constructive discharge.

d. Jeff Smit - Mr. Smit is a representative of Kahala and was on a telephone call 

with Keely Newman right before Keely had the September 18, 2017 telephone call (the call 

at issue) with Ms. Cramton. Mr. Smit has broad knowledge regarding the status of the 

Kahala deal at the time, testified extensively regarding same at his deposition, and is 

expected to testify regarding the details of the Kahala deal. His testimony relates to 

Plaintiff’s claims for breach of the implied covenant and fair dealing, fraud, and negligent 

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misrepresentation. Mr. Smit does not have any personal knowledge of Plaintiff’s minimum 

wage claim. Mr. Smit has been broadly disclosed as follows:

Mr. Smit is the Chief Operating Officer of Kahala Brands. He has knowledge has 

knowledge regarding everything he testified to at his deposition, Kahala’s acquisition 

of Grabbagreen and the status of those negotiations at the time of Ms. Cramton’s 

constructive discharge which may relate to Ms. Cramton’s Counts V-VIII, and all 

documents and communications he was a party or privy to.

Defendants’ Objections: Defendants object to testimony that exceeds the 

scope disclosed in Cramton’s MIDP and further object to any testimony about Cramton’s now 

dismissed constructive discharge claim.

e. Keely Newman - Keely Newman is a Defendant in this case. She is also 

expected to testify broadly regarding Plaintiff’s claims in this case and Defendants’ 

defenses. 

f. Teresa Mills (if available) - Ms. Mills is expected to testify extensively 

regarding Plaintiff’s minimum wage claim as she is the individual who authorized payments 

(or did not make payments) to Plaintiff in 2017, as well as the reasons for those payments. 

She also was the individual who made various accounting entries post-Ms. Cramton’s 

departure and this lawsuit. Ms. Mills has been broadly disclosed as follows: 

Ms. Mills is Grabbagreen’s in-house accountant. She has knowledge regarding the 

monies paid and owed to Ms. Cramton by the Defendants, Ms. Cramton’s minimum 

wage claim and claim for breach of the promissory note, Grabbagreen’s failure to pay 

wages to Ms. Cramton, her interactions with the Newmans, Ms. Cramton’s interactions 

with the Newmans, Ms. Cramton’s constructive termination from Grabbagreen, 

Defendants’ corporate structure and joint ownership/employment of Ms. Cramton, 

Defendants’ number of employees, the Newmans’ treatment of Ms. Cramton, the 

acquisition of Grabbagreen by Kahala Brands including negotiations related to same, Ms. 

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Cramton’s disability/medical condition and need for time off work to address same, all 

topics covered at her deposition, and all documents and communications she was a 

party or privy to.

Defendants’ Objections: Defendants object to testimony that exceeds the 

scope disclosed in Cramton’s MIDP.

g. Jeff Farnell - Jeff Farnell worked closely as a colleague of Ms. Cramton. He 

has detailed personal knowledge of the hours Plaintiff worked for purposes of her minimum 

wage claim as he worked closely with Plaintiff for those long hours. He is expected to 

testify regarding Ms. Cramton’s minimum wage claim and any defenses thereto. Mr. 

Farnell also has knowledge regarding Plaintiff’s emotional distress damages as he is a 

personal friend of Plaintiff’s. Mr. Farnell is also expected to testify regarding any 

communications he had with Plaintiff following her separation regarding the status of the 

Kahala deal. Mr. Farnell has been broadly disclosed as follows: 

Mr. Farnell is the former Director of Operations for Grabbagreen. He has knowledge 

regarding his interactions with the Newmans, Ms. Cramton’s interactions with the 

Newmans, Ms. Cramton’s constructive discharge, the working conditions that Ms. 

Cramton experienced at Grabbagreen, the acquisition of Grabbagreen by Kahala 

Brands and negotiations regarding same, Defendants’ corporate structure and joint 

ownership/employment of Ms. Cramton, Defendants’ number of employees, Ms. Cramton’s 

disability/medical condition and her need to address same, Ms. Cramton’s return of all 

Defendants’ property to Defendants after her constructive discharge, Defendants’ failure to 

accommodate Ms. Cramton, Ms. Cramton’s lack of disparagement and lack of breach of her 

non-compete, all aspects of Ms. Cramton’s employment with Defendants, and all 

documents and communications he was a party or privy to.

Defendants’ Objections: Defendants object to testimony that exceeds the 

scope disclosed in Cramton’s MIDP and further object to any testimony about his interactions 

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with the Newmans, Cramton’s interactions with the Newmans, constructive discharge, 

working conditions that Cramton experienced, purported exacerbation of Cramton’s medical 

issues, disability, medical condition, requests for accommodations/leaves of absence, 

Defendants’ corporate structure and joint/employment/ownership, Defendants number of 

employees – all are irrelevant to the remaining claims and more prejudicial than probative. 

Defendants object to testimony about Cramton’s emotional distress because damages for 

emotional distress are not recoverable under any count and were not disclosed in Cramton’s 

MIDP. Further, Farnell was no longer Cramton’s coworker after Cramton’s resignation on 

September 24, 2017 and none of the testimony Cramton purports to offer about events before 

September 18, 2017 are relevant in this case. Defendants’ object to the characterization of 

Defendants conduct as “abuse,” “abusive”, “fraud,” or “fraudulent,” etc. as these are 

conclusory legal statements. Defendants object to testimony about the negotiations of the 

Kahala acquisition of the Grabbagreen brand because he was not involved in any of the 

negotiations. This witness had no involvement with the allegations in Counts IV, VII, IX or 

X, no involvement with the Operating Agreement, no involvement with discussions involving 

Kahala and no involvement with the September 18, 2017 telephone call.

h. Karen Nettleton - Ms. Nettleton worked closely as a colleague of Ms. 

Cramton. She has detailed personal knowledge of the hours Plaintiff worked for purposes 

of her minimum wage claim as she worked closely with Plaintiff for those long hours. She 

is expected to testify regarding Plaintiff’s minimum wage claim and any defenses thereto. 

Ms. Nettleton is the former Director of Construction and Design for Grabbagreen. She has 

knowledge regarding everything she testified to at her deposition, her interactions with 

the Newmans, Ms. Cramton’s interactions with the Newmans, Ms. Cramton’s constructive 

discharge, the working conditions that Ms. Cramton experienced at Grabbagreen, the 

acquisition of Grabbagreen by Kahala Brands, Defendants’ corporate structure and joint 

ownership/employment, Defendants’ number of employees, Ms. Cramton’s disability and 

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her need to address same, and all documents and communications she was a party or privy 

to.

Defendants’ Objections: Defendants object to testimony that exceeds the 

scope disclosed in Cramton’s MIDP and further object to any testimony about her interactions 

with the Newmans, Cramton’s interactions with the Newmans, constructive discharge, 

working conditions that Cramton experienced, Cramton’s purported disability, Defendants’ 

corporate structure and joint joint/employment/ownership, Defendants number of employees

– all are irrelevant to the remaining claims and more prejudicial than probative. Defendants’ 

object to the characterization of Defendants conduct as “abuse,” “abusive”, “fraud,” or 

“fraudulent,” etc. as these are conclusory legal statements. Defendants object to testimony 

about the negotiations of the Kahala acquisition of the Grabbagreen brand because she was 

not involved in any of the negotiations. This witness had no involvement with the allegations 

in Counts IV, VII, IX or X, no involvement with the Operating Agreement, no involvement 

with discussions involving Kahala and no involvement with the September 18, 2017 telephone 

call. Defendants object to testimony about Cramton’s emotional distress because damages for 

emotional distress are not recoverable under any count and were not disclosed in Cramton’s 

MIDP. Further, Nettleton was no longer Cramton’s coworker after Cramton’s resignation on 

September 24, 2017 and none of the testimony Cramton purports to offer about events before 

September 18, 2017 are relevant in this case.

i. Todd Cable - Mr. Cable worked closely as a colleague of Ms. Cramton. He 

has detailed personal knowledge of the hours Plaintiff worked for purposes of her minimum 

wage claim as he worked closely with Plaintiff for those long hours. He is expected to 

testify regarding Ms. Cramton’s minimum wage claim and any defenses thereto. Mr. Cable 

was broadly disclosed as follows: 

Mr. Cable is the former Director of Franchise Relations for Grabbagreen. He has knowledge 

regarding his interactions with the Newmans, Ms. Cramton’s interactions with the 

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Newmans, Ms. Cramton’s constructive discharge, the working conditions that Ms. 

Cramton experienced at Grabbagreen, the acquisition of Grabbagreen by Kahala Brands, 

Defendants’ corporate structure and joint ownership/employment of Ms. Cramton, 

Defendants’ number of employees, Ms. Cramton’s disability and her need to address same, 

Defendants’ failure to accommodate Ms. Cramton, Ms. Cramton’s lack of disparagement 

and lack of breach of her non-compete, all aspects of Ms. Cramton’s employment with 

Defendants, and all documents and communications []he was a party or privy to. 

Defendants’ Objections: Defendants object to testimony that exceeds the 

scope disclosed in Cramton’s MIDP and further object to any testimony about his interactions 

with the Newmans, Cramton’s interactions with the Newmans, constructive discharge, 

working conditions that Cramton experienced, Cramton’s purported disability, Defendants’ 

corporate structure and joint/employment/ownership, Defendants number of employees– all 

are irrelevant to the remaining claims and more prejudicial than probative. Defendants’ object 

to the characterization of Defendants conduct as “abuse,” “abusive”, “fraud,” or “fraudulent,” 

etc. as these are conclusory legal statements. Defendants object to testimony about the 

negotiations of the Kahala acquisition of the Grabbagreen brand because he was not involved 

in any of the negotiations. This witness had no involvement with the allegations in Counts IV, 

VII, IX or X, no involvement with the Operating Agreement, no involvement with discussions 

involving Kahala and no involvement with the September 18, 2017 telephone call. Defendants 

object to testimony about Cramton’s emotional distress because damages for emotional 

distress are not recoverable under any count and were not disclosed in Cramton’s MIDP. 

Further, Cable was no longer Cramton’s coworker after Cramton’s resignation on September 

24, 2017 and none of the testimony Cramton purports to offer about events before September 

18, 2017 are relevant in this case.

j. Shelly Hess - Ms. Hess has been disclosed via Plaintiff’s Second 

Supplemental MIDP Responses dated 11/16/18, and also in Plaintiff’s written responses to 

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Defendants’ discovery requests. Ms. Hess is expected to testify regarding Plaintiff’s 

emotional distress damages and within the scope of her disclosure. She was broadly 

disclosed as follows: 

Ms. Hess is Ms. Cramton’s therapist. She has knowledge regarding the Newmans’ 

treatment of Ms. Cramton, Ms. Cramton’s constructive discharge, Ms. Cramton’s emotional 

distress damages, Ms. Cramton’s disability, Ms. Cramton’s claims for violations of the 

ADA, Ms. Cramton’s need for ADA accommodations, and all documents and 

communications she was a party or privy to

Defendants’ Objections: Defendants object to this witness as not properly 

disclosed as required by Rule 26 of the Federal Rules of Civil Procedure and the mandatory 

disclosure rule – Hess is not included as a witness in Cramton’s MIDP. Disclosing a witness 

to be called at trial for the first time in the pretrial order and long after the close of fact 

discovery prejudices the Defendants who were not on notice of this witness and did not have 

the opportunity to take her deposition should be barred under Rule 37. Hess was not disclosed 

as an expert and if permitted to give an expert opinion, the Defendants will be prejudiced 

because they had no opportunity to depose Hess as an expert or retain an expert of their own. 

Defendants object to testimony about Cramton’s emotional distress because damages for 

emotional distress are not recoverable under any count and were not disclosed in Cramton’s 

MIDP. Further, this witness has no personal knowledge about the Newmans or the events that 

Cramton claims in this case and she had no involvement with the allegations in Counts IV, 

VII, IX or X, no involvement with the Operating Agreement, no involvement with discussions 

involving Kahala and no involvement with the September 18, 2017 telephone call. Anything 

Hess has to say is based entirely on hearsay regarding the storyline Cramton created in 2017.

2. Witnesses Who May be Called at Trial

a. Kelli Newman

3. Witnesses Who Are Unlikely to be Called at Trial

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a. Adrienne Savonne - Ms. Savonne may be called regarding Plaintiff’s 

minimum wage claim, and to rebut Defendants’ arguments that Plaintiff was often at Ms. 

Savonne’s house and not working the hours she claims. Ms. Savonne may also be called to 

testify regarding any other documents and communications she was a party or privy to. Ms. 

Savonne was disclosed in Plaintiff’s 8th Supplemental MIDP Response, after Defendants’ 

counsel sent Plaintiff’s counsel the following email wishing to add her to Defendants’ 

witness list after the close of discovery (email dated 1/17/19): 

Counsel,

It has come to our attention that Adrienne Savone was inadvertently omitted from Section 1 of both 

parties’ final disclosure statements. Based on the request for production which named Ms. Savone, 

and the third party discovery requests sent to her, Ms. Savone is certainly a “person likely to have 

discoverable information relevant” to the parties’ claims and defenses.

An updated final disclosure statement is attached to this email and a hard copy will follow by US Mail.

Best, 

Jack R. Vrablik

The topics of Ms. Savonne’s disclosure are as follows: 

Ms. Savone has knowledge regarding Ms. Cramton’s constructive termination from 

Grabbagreen, defense to any claim that Ms. Cramton disparaged Defendants, Ms. 

Cramton’s disability, Defendants’ failure to accommodate Ms. Cramton, and all 

communications and documents she was a party or privy to. 

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Defendants’ Objections: Defendants object to this witness as not properly 

disclosed as required by Rule 26 of the Federal Rules of Civil Procedure and Cramton’s MIDP. 

Cramton had to actually add her to her MIDP list of witnesses. She did not and did not disclose 

any topic that she would be called to testify about and Defendants did not have the opportunity 

to depose her on the testimony summarized above for the very first time in this pretrial order. 

Defendants object to testimony about Cramton’s emotional distress because damages for 

emotional distress are not recoverable under any count and were not disclosed in Cramton’s 

MIDP. Further, Savone was never Cramton’s coworker and has no personal knowledge of 

Cramton’s work for GGS or GFL on a daily basis. Further, it appears Cramton is offering 

Savone’s testimony to rebut Cramton’s own sworn testimony where Cramton admitted to 

spending numerous evenings at Savone’s house every week and not working for GFL – to say 

nothing of all of the written documentation showing Cramton’s numerous evenings at 

Savone’s house. To add Savone to Cramton’s witness list to controvert her own sworn 

testimony should be considered a compelling reason to allow this.

Defendants’ List

1. Witnesses who will be called at trial:

Plaintiff’s general objection: Plaintiff objects to any witness testifying to events outside of 

their personal knowledge, and reserves all foundation, relevance, improper character 

testimony, and all other objections. Plaintiff also includes the below specific objections to 

Defendants’ witnesses.

a. Shelley DiGiacomo – Ms. DiGiacomo can authenticate the 

Resignation Letter given that Cramton would not stipulate to its existence and content. She 

can also authenticate all other communications she had that are not subject to the attorneyclient privilege and all communications and emails with Juliet Peters regarding Cramton 

and her communications with Defendants and Counterclaimants. Her involvement in 

negotiating and drafting the claw back language specifically to Cramton, her knowledge 

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regarding Keely’s intent to sell the business, her role in negotiating an employment 

agreement on behalf of Cramton with Due North during the period of approximately April 

2017 to July 2017 with Due North that would call for Cramton’s full-time employment upon 

the initially scheduled closing date at the end of May 2017 and the nature and extent of her 

relationship to Framework Legal and Juliet Peters. The timing of Cramton’s resignation 

and the preparation of her Resignation Letter.

b. Adams Price - Mr. Price is expected to testify consistent with his 

affidavit and as to various conversations regarding Kahala’s acquisition of the Grabbagreen 

brand and ECH’s desire and intent to sell its assets, including the content and purpose of the 

September 18, 2017 call with Keely and Kahala, and the subsequent call with Keely. He 

may testify as to the sales efforts and timeline in the Due North Deal and as to Keely’s 

ongoing desire to sell the Grabbagreen brand if either the Due North deal or Kahala deals 

did not close.

c. Jayson Gitt – Mr. Gitt is expected to testify as to various conversations 

regarding Kahala’s acquisition of the Grabbagreen brand and ECH’s desire and intent to 

sell its assets, including the content and purpose of the September 18, 2017 call with Keely 

and Kahala, and the subsequent call with Keely. He may testify as to the sales efforts and 

timeline in the Due North Deal and as to Keely’s ongoing desire to sell the Grabbagreen 

brand if either the Due North deal or Kahala deals did not close.

d. Teresa Mills - Ms. Mills can testify regarding Cramton’s payments in 

2016 and 2017 from GFL. She will also testify as to Cramton’s human resources role in 

Arizona, including but not limited to, her control over payroll, determination of employee 

compensation for payroll purposes, determination of hours and payment calculations for 

payroll purposes and her unfettered access to company bank accounts, including paper 

checks. Ms. Mills will testify that Cramton regularly accessed the company bank accounts 

and paid herself wages from company bank accounts. Ms. Mills will testify that Cramton 

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requested of the company that her 2017 GFL wages be contingently noted on the books and 

the records of the company as payments on the ECO note to avoid paying income and 

payroll taxes, and that Ms. Cramton was forewarned those ECO note journal entries were 

likely to be disregarded and reversed at the end of the year either by tax counsel or GFL’s 

auditors. She can also testify as to Keely’s managerial style, the interactions and 

communication between Keely and Cramton during, and the scope of Cramton’s 

employment. She will also testify as to any relevant accounting and payroll information, 

and documents and communications she was a party or privy to and the testimony provided 

in her deposition.

e. Tina Griffin - Ms. Griffin was a full-time employee of GFL as Keely’s 

assistant and full-time resident in Keely’s home/Grabbagreen office from January 2015 until 

her last day of employment on October 8, 2017. Ms. Griffin overheard almost all of the 

telephone calls between Keely, Cramton and other employees during the relevant period. 

Most importantly, Ms. Griffin was present and heard the call with Kahala and subsequent 

call with Cramton on September 18, 2017. Ms. Griffin will testify to what Keely said and 

did not say to Cramton on September 18, 2017. Ms. Griffin was also a witness to and in the 

Keely’s home the day Keely received Cramton’s resignation and will testify as to Keely’s 

reaction to Cramton’s resignation. Cramton never even attempted to depose Griffin. 

Defendants would have agreed and stipulated to a deposition after the deadline. Indeed, 

other depositions were taken at the end of discovery or after the deadline and the parties 

agreed on it. There is absolutely no reason that Cramton did not or could not have taken 

Griffin’s deposition. Cramton’s tactical decision to not take Griffin’s deposition should not 

provide a basis to bar a witness who was disclosed prior to the close of discovery. Griffin

has personal knowledge of what she directly witnessed, observed and heard Keely say on 

September 18, 2017. If that is “completely and 100% hearsay” as Cramton puts it in her 

objection, then everything that Farnell, McCormack, Hess, Savone, Nettleton, Cable, 

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Wuycheck and other members of Cramton’s posse logically is also “completely and 100% 

hearsay.”

Plaintiff’s Objection: 

Plaintiff objects to this witness as not being timely disclosed. This witness 

was not disclosed until the very last day of discovery in this case, preventing Plaintiff from 

deposing her or issuing any discovery related to her purported testimony. Her testimony is 

also, completely and 100% hearsay. This witness should be barred. 

Dana Mavros - Ms. Mavros was a consultant for GFL. She will testify as to 

Keely’s managerial style, the interactions and communication she witnessed between 

Keely and Cramton during Cramton’s employment. She has knowledge regarding

Cramton’s decision to resign from the company without regard to other potential 

purchasers because no deal would be done soon enough for Cramton. She can testify to 

the report she prepared for GFL. She is expected to testify on any topic and in 

conformance with her testimony provided in her January 18, 2019 deposition.

f. Jeff Smit - Mr. Smit is expected to testify in conformance with his 

deposition testimony and as to the content and purpose of the September 18, 2017 call with 

Keely, Adams Price and Kahala. He will testify about the negotiations for and Kahala’s 

purchase of and as to any documents and communications he was a party or privy to.

g. John Wuycheck - Mr. Wuycheck is expected to testify consistent with 

his deposition testimony regarding his role at Kahala. He may testify as to the negotiations 

for and Kahala’s purchase of the Grabbagreen brand. He may testify as to Cramton’s work 

history, his friendship with Cramton, and his contact with her during Kahala’s negotiation 

with ECH. He will testify as to the content and purpose of the September 18, 2017 call with 

Keely, Adams Price and Kahala, his text message and phone conversations with Kim 

Cramton on September 22, 2017 and at all other times leading up to Cramton’s resignation 

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and the first LOI Kahala offered to ECH. He is expected to testify regarding any documents 

and communications he was a party or privy to and consistent with his deposition testimony.

h. Greg Ferrell - Mr. Ferrell is a franchise area developer for GFL. He 

has knowledge regarding his recommendation to Keely that she sell the Grabbagreen brand

to Kahala, as opposed to Due North and worked with Cramton to facilitate the discussions 

between Kahala and ECH. Mr. Ferrell spoke to Cramton on the day she resigned and has

knowledge regarding her decision to resign from the company without regard to all potential 

purchasers.

i. Kim Cramton - Ms. Cramton is expected to testify regarding the 

allegations set forth in the Amended Complaint, pleadings, disclosures, responses to 

discovery, sworn declarations and in her depositions. She is expected to testify as to the 

factual basis of those pleadings, claims and denials and as to the documents, evidence and 

testimony that she is relying on to support her claims and denials, and her computer 

tampering and destruction of company data. Specifically, she will identify and explain her 

history with and relationship to the parties and witnesses in the case, her work history 

before and after her relationship to the parties to this dispute and the steps she, her family, 

friends, allies and agents took to preserve, protect and produce all relevant evidence in the 

case. To the extent that evidence was not preserved, protected and produced, she will 

testify as to why the evidence was not preserved and the steps she took to destroy or 

withhold the evidence. 

She will testify about the documents that she signed acknowledging her duty 

to protect company property, including confidential, proprietary and trade secret 

information and testify about her failure to adhere to those agreements. She will testify 

regarding the 3rd parties she hired to destroy evidence, her attempts to hide the destruction 

of evidence, her withholding of relevant evidence in the possession of 3rd party witnesses 

under subpoena and her attempts to harm Defendants personally and professionally by 

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disclosing confidential information while sensitive sales negotiations were ongoing.

j. Adrienne Savone - Ms. Savone is expected to testify regarding her 

knowledge of Cramton’s employment with GGS and GFL and Cramton’s reasons for 

ending her employment with GGS and GFL. Ms. Savone has knowledge of what Cramton 

and Laura McCormack told her about Keely, including disparaging remarks made about 

her. Ms. Savone has knowledge of the written statements Cramton asked her to review and 

revise on Cramton’s behalf. Savone assisted Cramton in this litigation by reviewing legal 

documents and pleadings, discussing the case, evidence and witnesses with Cramton and 

/or her counsel and participating in production and destruction of ESI.

Plaintiff’s Objection: Relevance and no personal knowledge. Ms. Savone’s personal 

knowledge described above relates to the counterclaims already dismissed by this Court.

k. Che Ornealas MD – Dr. Ornelas has knowledge regarding Cramton’s 

aneurysms and all documents and communications he was a party or privy to. He was the 

emergency room doctor who prescribed that Cramton could return to light duty work and 

can testify to Cramton’s medical records.

l. Carl Wilson – Mr. Wilson assisted Cramton in erasing the company’s 

laptop, iPhone and iCloud account and replacing the operating system before she returned 

them to GFL in September 2017. Mr. Wilson also created a backup of the emails between 

between Cramton and Keely before deleting them from the laptop, which he provided to 

Cramton.

Plaintiff’s Objection: Carl Wilson’s only testimony relates to Defendants’ 

claim of spoliation of evidence/counterclaims that Plaintiff somehow wrongfully retained 

or failed to return confidential company information. Those claims/arguments have been 

dismissed. Mr. Wilson’s testimony is thus irrelevant and a waste of time.

2. Witnesses who may be called at trial:

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a. David Glines - Mr. Glines was a contractor for GFL in charge of IT. 

Mr. Glines will testify as to Keely’s managerial style and the interactions and 

communication between Keely and Cramton during the scope of Cramton’s employment. 

Mr. Glines participated in the phone conference alleged in Cramton Interrogatory #6 answer 

to have taken place on a Saturday “in or around April of 2017”. He will confirm that the 

call took place on Sunday, December 17, 2016, not in April 2017, as Plaintiff claims, and 

that the call was exclusively related to GGS’s business matters, not any of corporate 

Defendants in this case. Mr. Glines also has knowledge of and was a witness to many phone 

calls between Keely and Cramton and can testify to Keely’s treatment of Cramton. Mr. 

Glines also directly reported to Keely. Mr. Glines will testify to his ownerhips interest in 

ECH that diluted Cramton’s rightfully forfeited unvested units. He will also testify to her 

personal observations of the interactions between Cramton and Keely and will testify to the 

non-abusiveness of Keely as a boss.

Plaintiff’s objection: Relevance. The events described above have nothing to do 

with the minimum wage claim or the claims related to the wrongful taking of Ms. Cramton’s 

membership interest.

b. Juliet Peters - Upon information and belief, and subject to her duties to 

the attorney-client and work product privileges, Ms. Peters will testify in conformance with 

her deposition testimony and regarding her history, duties and role as Grabbagreen’s 

Outside General Counsel and her interactions with Grabbagreen’s owners, managers officer 

and directors. She is also expected to testify regarding her conversations and other 

communications with the parties and attorneys who are adverse to the Defendants, owners 

and former managers, including, but not limited to Cramton, Laura McCormack, Shelley 

DiGiacomo, Todd Feltus, Molly Rogers, Michelle Matheson, Kahala representatives and 

others related to Cramton. She is expected to testify regarding her knowledge of Cramton’s 

work history, complaints about Keely, her attempts to set the Defendants up for various 

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legal claims, her provision of legal advice in breach of her duties to the Defendants and 

referrals to counsel who would aid Cramton’s plan to assert baseless ADA and FMLA 

claims, and her knowledge related to Cramton’s departure from GGS and GFL to work for 

Kahala in violation of restrictive covenants she drafted. Ms. Peters is expected to testify as 

to her personal and professional relationship to GGS and the individual and corporate 

Defendants sued by Cramton and her attorneys. She is also expected to testify regarding 

any documents and communications she was a party or privy to. Defendants’ identification 

of Ms. Peters does not constitute a waiver of any attorney-client/work product or client 

confidences or privileges between her and Defendants.

c. Shelley Hess – Ms. Hess may be called to authenticate Cramton’s 

specific medical records.

d. Kelli Newman – Ms. Newman may be called to testify about the 

allegations in the Amended Complaint and Counterclaims, the corporate structure of the 

entities, that Cramton controlled her schedule and her duties as the senior HR person. The 

effect of the Confidential Settlement Agreement and Release with GGS and affiliates. 

Information provide to Cramton regarding the plan to sell the Grabbagreen brand. The 

negative impact of Cramton’s contacts with purchasers of the Grabbagreen brand. All 

documents and communications she was privy to. The testimony provided in her deposition 

and the testimony provided on topics for the 30(b)(6) deposition of GGS.

e. Karen Nettleton – Ms. Nettleton is the former Director of Construction 

and Design for GFL. She has knowledge regarding her interactions with Keely and 

Cramton’s interactions with Keely. Ms. Nettleton also has knowledge of and was a witness 

to many phone calls between Keely and Cramton and can testify to any alleged verbal abuse. 

Knowledge of the work culture and environment at Grabbagreen Franchising, LLC. All 

documents and communications she was a party to or privy to. The testimony she provided 

at her deposition.

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3. Witnesses who are unlikely to be called at trial:

a. Todd Cable – Mr. Cable has knowledge of Cramton’s work schedule, 

including the frequency of when she worked at home and how she set he own, hour, her HR 

role. Mr. Cable also has knowledge of Cramton’s work conditions and relationship with 

Keely. Knowledge of the work culture and environment at Grabbagreen Franchising, LLC. 

Knowledge about ho Cramton violated her confidentiality duties and violated the 

Confidential Settlement Agreement and Release. Knowledge of how differences in political 

believes between Cramton and Keely caused tension. All documents and communications 

he was a party or privy to.

b. Lisa Oak – Conversations with Keely and Cramton regarding the fact 

that Keely fully intended to sell the business, irrespective of whether Due North or Kahala 

closed their transactions. One of the numerous inconsistent versions of Cramton’s story 

about the purported misrepresentation made by Keely includes the additional falsehood that 

Keely essentially told Cramton that there would be no buyers and no future offers from any 

party. Ms. McDonough is certainly relevant to clarify to the jury that everyone that spoke 

to Keely knew Keely would sell the Grabbagreen brand regardless of which potential buyer 

ultimately bought it making it irrelevant to Cramton’s stated reason for resigning, i.e., that 

she was just hanging in there to try to get Keely to make a discretionary payout because any 

such potential buyer would have similarly taken 6 months to negotiation and close and 

Cramton would have had the same opportunity to try to get Keely to exercise discretion. 

Cramton’s reliance and decision to resign was not reasonable or justified and Ms. 

McDonough can make this clear to the trier of fact.

Plaintiff’s Objection: This witness’ disclosure is as follows: “Conversations 

with Keely Newman and Kim Cramton regarding the fact that Keely Newman fully intended 

to sell the business, irrespective of whether Due North or Kahala closed their transactions 

with Grabbagreen.” This information is not relevant to Plaintiff’s claim that Ms. Newman’s 

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misrepresentations constituted negligent misrepresentation, fraud, and/or breached the 

implied covenant of good faith and fair dealing. 

c. Kristine McDonough – Ms. McDonough can testify about 

conversations with Keely and Cramton regarding the fact that Keely fully intended to sell 

the Grabbagreen brand, irrespective of whether Due North or Kahala became the ultimate 

buyer. One of the numerous inconsistent versions of Cramton’s story about the purported 

misrepresentation made by Keely includes the additional falsehood that Keely essentially 

told Cramton that there would be no buyers and no future offers from any party. Ms. 

McDonough is certainly relevant to clarify to the jury that everyone that spoke to Keely 

knew Keely would sell the Grabbagreen brand regardless of which potential buyer 

ultimately bought it making it irrelevant to Cramton’s stated reason for resigning, i.e., that 

she was just hanging in there to try to get Keely to make a discretionary payout because any 

such potential buyer would have similarly taken 6 months to negotiation and close and 

Cramton would have had the same opportunity to try to get Keely to exercise discretion. 

Cramton’s reliance and decision to resign was not reasonable or justified and Ms. 

McDonough can make this clear to the trier of fact.

Plaintiff’s Objection: This witness’ disclosure is as follows: “Conversations 

with Keely Newman and Kim Cramton regarding the fact that Keely Newman fully intended 

to sell the business, irrespective of whether Due North or Kahala closed their transactions 

with Grabbagreen.” This information is not relevant to Plaintiff’s claim that Ms. Newman’s 

misrepresentations constituted negligent misrepresentation, fraud, and/or breached the 

implied covenant of good faith and fair dealing

d. Scott Eckert – The content and purpose of the September 18, 2017 call 

with Keely, Price and Kahala. Subject to confidentiality, the negotiations for and Kahala’s 

purchase of business assets of GFL and certain affiliates.

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e. Renee Mitchell – Subject to confidentiality, Due North’s deal timeline 

and documents and communications related to that negotiated transaction and Cramton’s 

involvement, knowledge and anticipated role.

Plaintiff’s Objection: Defendants’ disclosure related to this witness is as 

follows: “Subject to confidentiality, first potential buyer's deal timeline and documents and 

communications related to that negotiated transaction and Kim Cramton's involvement, 

knowledge and anticipated role if that deal had closed.” Another unknown entity’s inquiry 

in purchasing Defendants’ business has no relevance to Plaintiff’s claims related to the 

Kahala deal.

f. Kevin Blackwell - Subject to confidentiality, Due North’s deal 

timeline and documents and communications related to that negotiated transaction and 

Cramton’s involvement, knowledge and anticipated role if that deal closed.

Plaintiff’s Objection: Defendants’ disclosure related to this witness is as 

follows: “Subject to confidentiality, first potential buyer's deal timeline and documents and 

communications related to that negotiated transaction and Kim Cramton's involvement, 

knowledge and anticipated role if that deal had closed.” Another unknown entity’s inquiry 

in purchasing Defendants’ business has no relevance to Plaintiff’s claims related to the 

Kahala deal

g. Laura McCormack

h. Jeff Farnell

i. Lindsay Warren – Ms. Warren was an employee of GGS, resigned and 

later in 2017 returned as an employee of ECO. Ms. Warren has personal knowledge and 

can testify about Cramton’s work schedule, HR role and HR posters hung by Cramton at 

the worksites.

Plaintiff’s Objection: This witness has no personal knowledge of the claims 

or defenses at issue. 

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j. Catherine Pearson – Ms. Pearson has personal knowledge of the work 

done in connection with and done in association with Juliet Peters and Framework Legal. 

Legal advice provided to Cramton after referral by Juliet Peters and referral of Cramton to 

Michelle Matheson.

Plaintiff’s Objection: This witness has no personal knowledge of the claims 

or defenses at issue

k. Dean Moomey – Mr. Moomey is the husband of Juliet Peters and has 

information related to communications concerning or relating to Keely, Cramton, Kelli 

Newman, Laura McCormack, and/or the remaining entity defendants.

Plaintiff’s Objection: This witness has no personal knowledge of the claims 

or defenses at issue.

l. Andrew Ducruet MD

m. Dale Ding, MD

n. Morgan Vanderwall – Ms. Vanderwall is a former GFL independent 

contract. She reported to Keely and has personal knowledge of her managerial style and 

whether she would consider it to be abusive. She is certainly relevant to rebut the character 

assassination and disparagement of Keely to the extent the Court allows it to continue to go 

on, she is certainly relevant to illuminate for the trier of fact that it is only Cramton’s Arizona 

buddies supporting the false abusiveness story and Cramton has listed several irrelevant 

witnesses she intends to put on for the purpose of improperly assassinating the character 

and disparagement of Keely despite the fact that all of the ADA claims and the constructive 

discharge claim were dismissed.

Plaintiff’s Objection: This witness has no personal knowledge of the claims 

or defenses at issue. 

o. Stacy Beeler – Ms. Beeler is the Director of Construction hired to 

replace Karen Nettleton in Florida. Ms. Beeler worked with Keely on a daily basis and has 

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personal knowledge of Keely’s managerial style and whether she would consider it to be 

abusive. She is certainly relevant to rebut the character assassination and disparagement of 

Keely to the extent the Court allows it to continue to go on, she is certainly relevant to 

illuminate for the trier of fact that it is only Cramton’s Arizona buddies supporting the false 

abusiveness story and Cramton has listed several irrelevant witnesses she intends to put on 

for the purpose of improperly assassinating the character and disparagement of Keely 

despite the fact that all of the ADA claims and the constructive discharge claim were 

dismissed.

Plaintiff’s Objection: This witness has no personal knowledge of the claims 

or defenses at issue. Defendants’ disclosure regarding this witness is as follows: “Hired in 

Florida to replace Karen Nettleton as Director of Construction. Worked with Keely 

Newman on daily basis and has knowledge of Keely Newman’s managerial style and 

whether she would consider it to be abusive.” Plaintiff’s claim for constructive discharge 

is no longer at issue. Additionally, this witness has no knowledge of Ms. Newman’s 

treatment of Ms. Cramton even if the constructive discharge claim were alive.

p. Joan Alpogianis – Ms. Alpogianis reported to Keely for years and can 

testify that Keely as a supervisor is not abusive. She is certainly relevant to rebut the 

character assassination and disparagement of Keely to the extent the Court allows it to 

continue to go on, she is certainly relevant to illuminate for the trier of fact that it is only 

Cramton’s Arizona buddies supporting the false abusiveness story and Cramton has listed 

several irrelevant witnesses she intends to put on for the purpose of improperly assassinating 

the character and disparagement of Keely despite the fact that all of the ADA claims and 

the constructive discharge claim were dismissed.

Plaintiff’s objection: this witness has no personal knowledge of the claims or 

defenses at issue. Defendants’ disclosure regarding this witness is as follows: “Ms. 

Alpogianis reported to Keely Newman when the two worked at Citigroup from 1997-2002, 

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and can testify to Keely Newman as a supervisor.” Plaintiff’s claim for constructive 

discharge is no longer at issue. Additionally, this witness has no knowledge of Ms. 

Newman’s treatment of Ms. Cramton even if the constructive discharge claim were alive.

q. Sabrina Modder – Ms. Modder reported to Keely while providing 

services for the Grabbagreen brand, has personal knowledge of all interactions she had with 

Keely and Cramton, and can testify that Keely is not abusive. She is certainly relevant to 

rebut the character assassination and disparagement of Keely to the extent the Court allows 

it to continue to go on, she is certainly relevant to illuminate for the trier of fact that it is 

only Cramton’s Arizona buddies supporting the false abusiveness story and Cramton has 

listed several irrelevant witnesses she intends to put on for the purpose of improperly 

assassinating the character and disparagement of Keely despite the fact that all of the ADA 

claims and the constructive discharge claim were dismissed.

Plaintiff’s Objection: This witness has no personal knowledge of the claims 

or defenses at issue.

r. George Huggins - Mr. Huggins is a franchise area developer and acted 

as one for GFL. He has knowledge regarding his recommendation to Keely that she sell the 

Grabbagreen brand to Kahala as opposed to Due North. He had knowledge of how Cramton 

wrongfully spread Keely’s spouses medical information with Mr. Ferrell and himself.

s. Antonia Scholz (and all other attorneys at Cheng Cohen who 

performed work for GFL and ECH) – Cheng Cohen served as franchise counsel for the 

Grabbagreen brand and ECH and GFL. Subject to attorney-client privilege, the attorneys 

at Chang Cohen have knowledge of the terms of the incomplete acquisition of the 

Grabbagreen brand by Due North, and the terms of the acquisition by Kahala, including all 

negotiations regarding the same. The attorneys at Cheng Cohen also have knowledge of the 

role Cramton played in the preparation of the FDDs, Cramton’s general knowledge of the 

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structure of GFL, ECH and GGS, and Cramton’s ownership interest in ECH and GGS. All 

non-privileged documents and communications they were a party or privy to.

Plaintiff’s Objection: Ms. Scholz was Defendants’ attorney regarding 

franchising matters. She has no personal knowledge of Ms. Cramton and Keely Newman’s 

September 18, 2017 telephone call or Ms. Cramton’s minimum wages (unless to a minor 

extent she was aware that Ms. Cramton was working long hours in her communications 

with her). Her testimony would be marginal at best and a waste of time. 

t. Jenny Moody – Ms. Moody is an attorney for Kahala not the 

Defendants. She has knowledge regarding the acquisition of the Grabbagreen brand by 

Kahala and related negotiations, Cramton’s employment with Kahala, the use or absence of 

methods and protocols used to separate Cramton from details regarding Kahala’s acquisition 

of the Grabbagreen brand, and all documents and communications she was a party to or 

privy to.

Plaintiff’s Objection: Ms. Moody was Defendants’ attorney. She has no 

personal knowledge of Ms. Cramton and Keely Newman’s September 18, 2017 telephone 

call or Ms. Cramton’s minimum wages (unless to a minor extent she was aware that Ms. 

Cramton was working long hours in her communications with her). Her testimony would 

be marginal at best and a waste of time.

u. Inese Mazarevica – Ms. Mazarevica has personal knowledge of the 

work culture and environment at GFL and personal knowledge of Keely’s managerial style 

and that it was not abusive. Ms. Mazarevica is not a part of Cramton’s Arizona click and is 

certainly relevant to rebut the character assassination and disparagement of Keely to the 

extent the Court allows it to continue to go on, she is certainly relevant to illuminate for the 

trier of fact that it is only Cramton’s Arizona buddies (of which she is not one) supporting 

the false abusiveness story and Cramton has listed several irrelevant witnesses she intends 

to put on for the purpose of improperly assassinating the character and disparagement of 

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Keely despite the fact that all of the ADA claims and the constructive discharge claim were 

dismissed.

Plaintiff’s Objection: This witness has no personal knowledge of the claims 

or defenses at issue. 

Each party understands that it is responsible for ensuring that the witnesses it wishes 

to call to testify are subpoenaed. Each party further understands that any witnesses a party 

wishes to call must be listed on that party’s list of witnesses; the party cannot rely on the 

witness having been listed or subpoenaed by another party.

F. EXHIBIT LIST 

1. Plaintiff’s list of exhibits, and Defendants’ objections thereto, are attached as 

Exhibit 1.

5

 

2. Defendants’ list of exhibits, and Plaintiff’s objections thereto, are attached as 

Exhibit 2.

3. If there are more than 20 exhibits, the parties must email their exhibit lists in 

Word format, at least five days before trial, to the chambers email address 

(lanza_chambers@azd.uscourts.gov).

4. Each party hereby acknowledges by signing this Joint Proposed Final Pretrial 

Order that any objections not specifically raised herein are waived.

G. DEPOSITIONS TO BE OFFERED

1. Plaintiff will use the following depositions at trial:

a. Teresa Mills (if Mills is not available to testify)

Mills, Teresa – December 20, 2018

5 Consistent with the Court’s December 27, 2019 order, Plaintiff has not 

included a reply to the objections. To the extent that a reply is necessary, Plaintiff will need 

additional time to provide her position. To the extent that a reply is not contemplated in the 

December 27, 2019 order, Plaintiff objects to any reply asserted by Defendants.

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Page / Line Objection

9:11 – 9:13 No objection

32:12 – 34:12 No objection

35:08 – 35:21 No objection

36:02 – 36:11 Assumes facts not in evidence/foundation/vague – 36:06 – 36:11 as to the four 

entities referenced.

37:17 – 39:19 No objection

40:18 – 41:20 1. Vague – 40:21 – 40:22 as to when the deal closed and the nature of what was 

sold

2. Assumes facts not in evidence/foundation/calls for legal conclusion/vague –

41:04 – 41:09 as to the entities described and when the deals closed and the 

nature of what was sold in each deal.

41:24 – 42:05 Assumes facts not in evidence/foundation/vague – 41:24 – 42:05 as to Kahala 

as a buyer, when the deal closed and the nature of what was sold. Ms. Mills is 

not qualified to testify about the nature of the deal.

46:11 – 47:18 No objection

50:04 – 50:18 No objection

53:13 – 54:10 Assumes facts not in evidence/ foundation/relevance – 53:13 – 53:24 as to 

whether Gulf Girl Squared had an office lease, when it ended and whether 

Grabbagreen Franchising, LLC leased the same space.

55:16 – 55:25 Assumes facts not in evidence/foundation/calls for speculation – 55:16 – 55:25 

the foundation, authenticity and identify of the document have not been 

established.

69:17 – 73:16 Improper opinion/lacks foundation for personal knowledge/calls for 

speculation/hearsay – 69:24 – 72:07 – Ms. Mills was an accountant in Oregon 

not a person working in operations or sales in the Arizona office. She has no 

direct knowledge of the duties or daily activities of different employees or who 

they reported to.

73:25 – 75:25 Foundation/vague – 73:25 – 75:25 as to who these discussions were with, when 

they occurred, how they occurred, who else was involved and which entity they 

are talking about.

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76:03 – 77:07 Relevance/ foundation/vague – 76:03 – 76:08 as to who was involved in 

preparation of the franchise disclosure document and incomplete information 

and what duties Cramton had.

105:20 – 109:07 1. Relevance/bankruptcy stay – a bankruptcy stay applies to Eat Clean 

Operations, LLC. No determinations should be made in this Court about the 

amount of liability that Eat Clean Operations, LLC may have or has in relation 

to its promissory note. The Eat Clean Operations, LLC promissory note is 

irrelevant to the issue of whether payments made by Grabbagreen Franchising, 

LLC were properly characterized as wages and related to Cramton’s labor or 

services to Grabbagreen Franchising, LLC.

2. Relevance/improper opinion/lacks foundation for personal 

knowledge/calls for a legal conclusion/calls for speculation – 105:20 – 107:05 

as to the document referenced, the accounting information described and 

assignment of loans contingent upon the Due North closing or that an 

assignment ever happened given that the Due North deal never closed.

3. Relevance/assumes facts not in evidence/foundation/calls for a legal 

conclusion/calls for speculation – 107:06 – 109:07 as to the assignment of the 

notes contingent upon the closing of the Due North deal, that the Due North 

never closed, who signed the closing documents, who dated them or that there 

was no “treatment” of loans by Kahala in the Kahala transaction because the 

Due North deal never closed.

109:13 – 111:14 Relevance/foundation and authenticity of document not established/vague –

110:02 – 110:13 as to any accounting entries relating to wage payments made 

from Grabbagreen Franchising to Cramton.

126:23 – 127:07 Assumes facts not in evidence/foundation/calls for speculation – No 

information provided that wages were not going to be paid, that a decision was 

made, when discussed or what was discussed.

128:03 – 129:03 Relevance/assumes facts not in evidence/foundation/calls for 

speculation/vague – 128:07 – 129:03 as to accounting instructions instead of 

agreement of the owners and all accounting done to track hypothetical wages 

not relating to any count, including Count IV or damages claimed under Count 

IV.

129:07 – 132:11 Relevance – Accounting notes in unaudited interim books or entries tracking 

agreed upon foregone wages by members is irrelevant to Cramton’s claim 

under Count IV. Count IV is a minimum wage claim. Cramton alleged a 

specified number of hours she claims to have worked for Grabbagreen 

Franchising and dates on which she allegedly worked to arrive at specified 

damages using the applicable Arizona minimum wage rate. No damages based 

on accounting entries, interim financial statements, adjustments to interim 

financial statements or offsetting accounting entries were alleged or disclosed 

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in Cramton’s mandatory disclosure statement based on accounting entries was 

alleged or disclosed under Count IV and no such information makes it more 

probable that Cramton’s minimum wage claim or the related damages 

calculation is accurate. 

132:15 – 132:17 No objection

132:22 – 134:17 1. Relevance/bankruptcy stay – a bankruptcy stay applies to Eat Clean 

Operations, LLC. No determinations should be made in this Court about the 

amount of liability that Eat Clean Operations, LLC may have or has in relation 

to its promissory note. The Eat Clean Operations, LLC promissory note is 

irrelevant to the issue of whether payments made by Grabbagreen Franchising, 

LLC were properly characterized as wages and related to Cramton’s labor or 

services to Grabbagreen Franchising, LLC.

2. Relevance/hearsay/improper opinion/lacks foundation for personal 

knowledge/calls for speculation – 133:14 – 133:17 and 133:21– 134:17 as to 

purchases Cramton made on her personal credit card that the witness lacks 

direct knowledge of but heard that is what she did.

135:15 – 138:23 No objection

139:02 – 140:23 1. Relevance/bankruptcy stay – a bankruptcy stay applies to Eat Clean 

Operations, LLC. No determinations should be made in this Court about the 

amount of liability that Eat Clean Operations, LLC may have or has in relation 

to its promissory note. The Eat Clean Operations, LLC promissory note is 

irrelevant to the issue of whether payments made by Grabbagreen Franchising, 

LLC were properly characterized as wages and related to Cramton’s labor or 

services to Grabbagreen Franchising, LLC.

2. Relevance/improper opinion/lacks foundation for personal 

knowledge/calls for speculation – Cramton received numerous payments with 

different characterization. The payment discussed is not one of the two 

payments Cramton received that were characterized by Grabbagreen 

Franchising, LLC as wages well in excess of the minimum wage. This 

payment is irrelevant to Count IV and has no bearing on the proper 

characterization of the two payments at issue in this case. Ms. Mills guessed 

at what “roll over” means, did not roll over the funds discussed and guessed at 

whether a payment relates to an email.

141:02 – 142:03 1. Relevance/bankruptcy stay – a bankruptcy stay applies to Eat Clean 

Operations, LLC. No determinations should be made in this Court about the 

amount of liability that Eat Clean Operations, LLC may have or has in relation 

to its promissory note. The Eat Clean Operations, LLC promissory note is 

irrelevant to the issue of whether payments made by Grabbagreen Franchising, 

LLC were properly characterized as wages and related to Cramton’s labor or 

services to Grabbagreen Franchising, LLC.

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2. Relevance/improper opinion/lacks foundation for personal 

knowledge/calls for speculation – Cramton received numerous payments with 

different characterization. The payment discussed is not one of the two 

payments Cramton received that were characterized by Grabbagreen 

Franchising, LLC as wages well in excess of the minimum wage. This 

payment is irrelevant to Count IV and has no bearing on the proper 

characterization of the two payments at issue in this case. Ms. Mills guessed 

at whether the payments related to an email.

142:07 – 144:07 Relevance/bankruptcy stay – a bankruptcy stay applies to Eat Clean 

Operations, LLC. No determinations should be made in this Court about the 

amount of liability that Eat Clean Operations, LLC may have or has in relation 

to its promissory note. The Eat Clean Operations, LLC promissory note is 

irrelevant to the issue of whether payments made by Grabbagreen Franchising, 

LLC were properly characterized as wages and related to Cramton’s labor or 

services to Grabbagreen Franchising, LLC.

144:11 – 145:16 1. The Eat Clean Operations, LLC promissory note is irrelevant to the 

issue of whether payments made by Grabbagreen Franchising, LLC were 

properly characterized as wages and related to Cramton’s labor or services to 

Grabbagreen Franchising, LLC.

2. Relevance/improper opinion/lacks foundation for personal 

knowledge/calls for speculation – Cramton received numerous payments with 

different characterization. The payment discussed is not one of the two 

payments Cramton received that were characterized by Grabbagreen 

Franchising, LLC as wages well in excess of the minimum wage. This 

payment is irrelevant to Count IV and has no bearing on the proper 

characterization of the two payments at issue in this case. Ms. Mills did not 

transfer any funds and does not know if the payment relates to the email.

145:20 – 146:18 1. The Eat Clean Operations, LLC promissory note is irrelevant to the 

issue of whether payments made by Grabbagreen Franchising, LLC were 

properly characterized as wages and related to Cramton’s labor or services to 

Grabbagreen Franchising, LLC.

2. Relevance/improper opinion/lacks foundation for personal 

knowledge/calls for speculation – 145:20 – 146:07 as to a payment Cramton

received with a different characterization. The payment discussed is not one 

of the two payments Cramton received that were characterized by Grabbagreen 

Franchising, LLC as wages well in excess of the minimum wage. This payment 

is irrelevant to Count IV and has no bearing on the proper characterization of 

the two payments at issue in this case. Ms. Mills did not transfer any funds and 

does not know if the payment relates to the email.

146:22 – 148:01 1. The Eat Clean Operations, LLC promissory note is irrelevant to the 

issue of whether payments made by Grabbagreen Franchising, LLC were 

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properly characterized as wages and related to Cramton’s labor or services to 

Grabbagreen Franchising, LLC.

2. Relevance/improper opinion/lacks foundation for personal 

knowledge/calls for speculation – Cramton received numerous payments with 

different characterization. The payment discussed is not one of the two 

payments Cramton received that were characterized by Grabbagreen 

Franchising, LLC as wages well in excess of the minimum wage. This 

payment is irrelevant to Count IV and has no bearing on the proper 

characterization of the two payments at issue in this case. Ms. Mills did not 

transfer any funds and does not know if the payment relates to the email.

148:05 – 149:23 1. The Eat Clean Operations, LLC promissory note is irrelevant to the 

issue of whether payments made by Grabbagreen Franchising, LLC were 

properly characterized as wages and related to Cramton’s labor or services to 

Grabbagreen Franchising, LLC.

2. Relevance/improper opinion/lacks foundation for personal 

knowledge/calls for speculation – 148:05 – 148:24 as to a payment Cramton

received with a different characterization and as to 148:25 – 149:04 as to any 

accounting adjustments made in contemplation of the Due North closing or 

assignment of loans contingent upon the Due North closing. The payment 

discussed is not one of the two payments Cramton received that were 

characterized by Grabbagreen Franchising, LLC as wages well in excess of the 

minimum wage. This payment is irrelevant to Count IV and has no bearing on 

the proper characterization of the two payments at issue in this case. Ms. Mills 

did not transfer any funds and does not know if the payment relates to the email.

151:14 – 155:03 Relevance/improper opinion/lacks foundation for personal knowledge/calls for 

speculation – 153:05 – 153:16 as to Ms. Mill’s opinion regarding reporting 

forms for partnerships. Ms. Mills is a fact witness not an expert and 153:17 –

155:03 as to who prepared the return for an unidentified company in various 

years. Who prepared the return for the Defendant entities is irrelevant to every 

count before the Court.

155:04 – 156:11 Relevance/improper opinion/lacks foundation for personal knowledge/calls for 

speculation – Cramton received numerous payments with different 

characterization. The payment discussed is not one of the two payments 

Cramton received that were characterized by Grabbagreen Franchising, LLC 

as wages well in excess of the minimum wage. This payment is irrelevant to 

Count IV and has no bearing on the proper characterization of the two payments 

at issue in this case. The issue of whether Grabbagreen Franchising, LLC 

properly characterized payments to Cramton in an amount equivalent to 

Cramton’s monthly car loan payment on her personal automobile as a taxable 

distribution instead of a non-taxable lease expense is irrelevant to this case. 

Grabbagreen Franchising, LLC did not lease a car for Cramton’s benefit.

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Cramton did not assert any claim that payments made to her in an amount 

equivalent to her personal car monthly payment are not taxable nor did she 

identify this as a part of any damages under any count before this Court. 

Further, no accounting entries or notes on interim financial statements relating 

to distributions of money she received in an amount equivalent to her monthly 

car payment are relevant to any issue before this Court. Nor is it relevant who 

or what tax professional determined that the monthly payments Cramton

received in 2017 for $548.10 were taxable payments that were required, as a 

matter of law, to be reported as taxable distributions to the IRS and Arizona. 

156:15 – 163:02 Relevance – 157:07 – 157:14 as to whether Quickbooks was used to prepare 

the ledger and 159:01 – 159:15 as to how Grabbagreen Franchising, LLC 

characterized payments to Cramton equal to Cramton’s monthly car loan 

payment on her personal automobile as a taxable distribution instead of a nontaxable lease expense. How that monthly payment is characterized in 

accounting records is irrelevant to this case. Cramton did not assert any claim 

that payments made to her that equaled her personal monthly car payment are 

not taxable nor did she identify this as a part of any damages under any count 

before this Court. Further, no accounting entries or notes on interim financial 

statements relating to distributions of money she received in an amount 

equivalent to her monthly car payment are relevant to any issue before this 

Court. Nor is it relevant why the accounting entry was corrected or who or 

what tax professional determined that the monthly payments Cramton received 

in 2017 for $548.10 were taxable payments that were required, as a matter of 

law, to be reported as taxable distributions to the IRS and Arizona. 

163:06 – 163:08 No objection

163:19 – 164:04 No objection

169:14 – 169:15 No objection

169:24 – 179:20 1. The Eat Clean Operations, LLC promissory note is irrelevant to the 

issue of whether payments made by Grabbagreen Franchising, LLC were 

properly characterized as wages and related to Cramton’s labor or services to 

Grabbagreen Franchising, LLC.

2. Relevance/improper opinion – 171:07 – 171:19 as to Ms. Mill’s opinion 

on GAAP accounting for franchisors, the method of income allocation on the 

2017 tax return and accounting or tax treatment of unearned revenue for a 

franchisor are all irrelevant to the issues in this case.

3. Relevance –171:23 – 179:20 as to any accounting adjustments made in 

contemplation of the Due North deal closing, assignment of loans contingent 

upon the Due North deal closing, accounting adjustments because that deal did 

not close are irrelevant to any count before the Court or Eat Clean Operation, 

LLC’s ability to pay its promissory note are irrelevant to any count before the 

Court, including specifically Count IV. None of these accounting entries or 

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adjustments or the accountant’s correction of entries because the Due North 

deal did not close have any bearing on whether Grabbagreen Franchising, LLC 

properly characterized the two payments it made to Cramton as wages.

179:24 – 181:15 No objection

181:20 – 186:20 Relevance – 185:01 – 186:20 as to how Grabbagreen Franchising, LLC 

characterized payments to Cramton in an amount equal to Cramton’s monthly 

car payment for her personal vehicle as a taxable distribution instead of a nontaxable lease expense. How that monthly payment is characterized in 

accounting records is irrelevant to any count before the Court, including Count 

IV. Cramton did not assert any claim that payments made to her in an amount 

that equaled her personal monthly car payment are not taxable nor did she 

identify this as a part of any damages under any count before this Court in her 

mandatory disclosure statement. The accounting entries are irrelevant. Nor is 

it relevant why the accounting entry was entered incorrectly, why is was 

corrected or who or what tax professional determined that the monthly 

payments Cramton received in 2017 for $548.10 were taxable payments that 

were required, as a matter of law, to be reported as taxable distributions (not 

non-taxable expenses) to the IRS and Arizona or when that determination was 

made. 

186:24 – 197:18 1. Relevance – 186:24 – 191:14 as to how deferred franchise revenue is 

accounted for or tracked and when it is recognized, the difference between 

recognized and earned and what happens if a “franchisee falls by the wayside 

for whatever reason” and that the tracking is a cumulative list and how deferred 

area developer representative revenue is accounted for and amortized is 

irrelevant to all counts before the Court. Cramton did not allege any count 

based on or related to any accounting records, application of any accounting 

rules for franchisor businesses, issues relating to revenue recognition, 

accounting or taxation. Cramton did not identify any damages she suffered in 

relation to any count determined based on or relating to these accounting 

records in her mandatory disclosure rule. Any undisclosed claims or damages 

are irrelevant to the counts before this Court.

2. Relevance – 191:15 – 195:02 as to financial statements, gift card 

payable accounting entries, what happened to gift card liabilities and cash, 

deferred franchise revenue and area representative revenue treated as shortterm versus long-term, GAAP rules applicable to a franchisor are all irrelevant 

to the counts before the Court. Cramton did not allege any count based on or 

related to any accounting records, financial statements, or application of any 

accounting rules for franchisor businesses. Cramton did not identify any 

damages she suffered in relation to any count determined based on or relating 

to these financial statements or accounting entries in her mandatory disclosure 

rule. Any undisclosed claims or damages are irrelevant to the counts before 

this Court.

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3. Relevance – 195:03 – 196:19 as to any accounting adjustments made in 

contemplation of the Due North deal closing, assignment of loans contingent 

upon the Due North deal closing, accounting adjustments because that deal did 

not close are irrelevant to any count before the Court.

4. Relevance/Vague – 196:20 – 197:18 as to who prepared the 2017 tax 

returns for an unnamed entity and whether Grabbagreen Franchising, LLC was 

combined with Eat Clean Holdings, LLC for tax returns is irrelevant to any 

count in this case. Cramton did not allege a claim based on the tax returns of 

any entity nor did she disclose a claim or damages based on the tax returns of 

any entity.

204:25–205:19 No objection

b. Dana Mavros (if Mavros is not available to testify)

Mavros, Dana – January 18, 2019

Page / Line Objection

30:19 – 31:07 No objection

32:03 – 32:18 No objection

33:19 – 35:23 

[starting with 

“in May...”] No objection

39:03 – 39:24 Relevance – discussion has nothing to do with the wage payments 

Cramton received and no relationship at all to Counts VII, IX or X.

41:22 – 42:03 

[ending with 

“them.”] No objection

43:19 – 44:03 

[ending with 

“would.”] No objection

45:03 – 45:12 No objection

55:16 – 56:10 Relevance – email has nothing to do with the wage payments Cramton 

received and no relationship at all to Counts VII, IX or X.

59:16 – 60:01 Relevance – who she met with has nothing to do with the wage 

payments Cramton received and no relationship at all to Counts VII, IX 

or X.

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72:05 – 72:23 Relevance/foundation/hearsay – her understanding of McCormack’s 

role has nothing to do with the wage payments Cramton received and 

no relationship at all to Counts VII, IX or X.

73:09 – 75:04 Foundation 

93:21 – 93:24 Relevance – when she travelled has nothing to do with the wage 

payments Cramton received and no relationship at all to Counts VII, IX 

or X.

96:02 – 96:20 Relevance – her description of the meeting has nothing to do with the 

wage payments Cramton received and no relationship at all to Counts 

VII, IX or X.

97:09 – 98:04 

[ending with 

“specifically.”]

Relevance – who she met with has nothing to do with the wage 

payments Cramton received and no relationship at all to Counts VII, IX 

or X.

104:15 – 106:02 Relevance – who she met with and her coaching have nothing to do 

with the wage payments Cramton received and no relationship at all to 

Counts VII, IX or X.

109:11 – 110:03 Foundation

113:06 – 113:23 

[ending with 

“that’s it,...”] No objection

146:04 – 146:17 No objection

147:05 – 147:24 Relevance/foundation/hearsay – her understanding of Cramton’s 

responsibilities has nothing to do with the wage payments Cramton 

received and no relationship at all to Counts VII, IX or X.

152:19 – 155:17 No objection

156:10 – 157:13 No objection

159:09 – 159:20 No objection

165:01 – 165:12 No objection

2.Defendant will use the following depositions at trial:

a. Teresa Mills (if Mills is not available to testify)

Mills, Teresa – December 20, 2018

Page / Line Objection

9:11 – 9:13 No objection.

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22:04 – 22:09 No objection.

22:13 – 22:18 No objection.

22:24 – 23:09 No objection.

23:15 – 23:21 No objection.

23:25 – 24:25 No objection.

29:01 – 29:10 No objection.

31:18 – 32:05 No objection.

33:02 – 33:04 No objection.

36:02 – 36:05 No objection.

40:18 – 40:20 No objection.

41:10 – 41:20 No objection.

42:13 – 43:01 No objection with the exception of the testimony related to 

Human Resources issues as irrelevant (42:25-43:1).

45:10 – 46:07 Objection: relevance, waste of time. 

49:23 – 49:24 No objection. 

54:13 – 55:15 No objection. 

56:01 – 56:05 Object as incomplete. This excerpt is missing the critical context 

and questions leading up at 55:16-25. Ms. Mills testified she 

reported to Keely Newman. 

58:07 – 58:12 No objection. 

72:08 – 73:16 No objection. 

76:22 – 77:07

109:13 – 110:01 No objection. 

111.15 – 111:19 Objection: Testimony without any context is completely 

confusing and is also irrelevant.

127:02 – 127:07 No objection. 

128:03 – 128:06 No objection. 

133:18 – 133:20 No objection. 

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135:15 – 137:01

138:16 – 138:23 No objection. 

142:07 – 143:08 No objection. 

166:04 – 166:21*

169:14 – 169:15

169:24 – 170:04

170:21 – 171:04

174:21 – 175:23*

200:10 – 201:11 Objection: The constructive discharge claim has been dismissed 

so this testimony is now irrelevant. Lack of Foundation. Ms. 

Mills states she was in the office at most a few times a year. 

201:25 – 203:25 No objection. 

204:03 – 204:08 No objection. 

204:25 – 205:23 No objection. 

206:01 – 206:17 No objection. 

206:22 – 208:10 No objection. 

*Included as related parts to Cramton’s proposal.

b. Dana Mavros (if Mavros is not available to testify)

Mavros, Dana – January 18, 2019

Page / Line Objection

4:07 – 4:08 No objection, joint

6:01 – 6:03 No objection, joint

15:20 – 16:18 No objection, joint

17:08 – 17:19 No objection, joint

18:08 – 18:20 No objection, joint

19:20 – 19:09 Unclear designation as line 20 follows line 9.

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19:24 – 20:01 No objection. 

20:04 – 20:24 No objection 

21:01 – 21:12 No objection. 

21:22 – 22:24 No objection. 

22:08 – 22:13 No objection. 

22:16 – 22:19 No objection. 

23:03 – 23:10 No objection. 

24:02 – 24:14 No objection. 

24:18 – 26:18 No objection. 

26:22 – 26:23 No objection. 

27:12 – 27:21 No objection 

28:06 – 28:15 No objection with the exception of the testimony related to 

Human Resources issues as irrelevant (42:25-43:1). 

29:21 – 31:15 Objection: relevance, waste of time. 

32:03 – 32:18 No objection. 

32:22 – 35:23 No objection. 

42:03 – 43:02 Object as incomplete. This excerpt is missing the critical context 

and questions leading up at 55:16-25. Ms. Mills testified she 

reported to Keely Newman. 

43:19 – 45:12 No objection. 

58:23 – 59:04 No objection. 

64:14 – 65:20 Objection: Testimony without any context is completely 

confusing and is also irrelevant. 

70:13 – 71:03 No objection. 

72:24 – 73:08 Objection: Testimony without any context is completely 

confusing and is also irrelevant.

86:07 – 87:05 No objection. 

88:19 – 91:02 No objection. 

98:04 – 98:07 No objection. 

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99:14 – 100:21 Objection. The entire testimony is based on an exhibit that is 

hearsay as it is an accounting entry, after the fact, made in 

response to litigation and in order to address the claims in this 

litigation. It is inadmissible. 

106:05 – 107:16 No objection. 

113:06 – 115:12 No objection. 

115:17 – 115:22

116:01 – 116:03 Objection. The entire testimony is based on an exhibit that is 

hearsay as it is an accounting entry, after the fact, made in 

response to litigation and in order to address the claims in this 

litigation. It is inadmissible. 

125:01 – 127:18 Objection. The entire testimony is based on an exhibit that is 

hearsay as it is an accounting entry, after the fact, made in 

response to litigation and in order to address the claims in this 

litigation. It is inadmissible. 

128:08 – 128:21 Objection. The entire testimony is based on an exhibit that is 

hearsay as it is an accounting entry, after the fact, made in 

response to litigation and in order to address the claims in this 

litigation. It is inadmissible. 

129:04 – 134:18

135:19 – 136:03 Objection: The constructive discharge claim has been dismissed 

so this testimony is now irrelevant. Lack of Foundation. Ms. 

Mills states she was in the office at most a few times a year. 

136:09 – 137:15 No objection. 

138:03 – 138:22 No objection. 

139:15 – 141:20 No objection. 

142:03 – 142:14 No objection. 

142:20 – 143:11 No objection. 

144:02 – 146:17 No objection. 

148:01 – 150:09 Objection: testimony is hearsay, irrelevant, and lack of 

foundation. 

151:05 – 151:12 Objection: testimony is hearsay, irrelevant, and lack of 

foundation

152:07 – 156:07 No objection. 

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156:10 – 158:04 Objection: Foundation and hearsay. Ms. Mavros was not a party 

to the Keely/Cramton call and she has no personal knowledge 

about the status of the deal. 

158:14 – 159:01 Objection: Lack of foundation. Ms. Mavros confirmed in this 

testimony that she had no personal knowledge of these facts. All 

based on hearsay. 

159:09 – 159:20 No objection. 

161:03 – 161:11 Objection: Lack of foundation. Ms. Mavros confirmed in this 

testimony that she had no knowledge of these facts. All based 

on hearsay.

161:24 – 162:11 Objection. Hearsay. Lack of Foundation. No ability to clarify 

or cross examine the witness as to the incorrect date of the phone 

call as Ms. Cramton did not resign on 9/18 but did so on 9/24. 

FRE 403 – confusing to the jury as obviously incorrect date. 

165:01 – 165:14 No objection. 

176:14 – 177:03 Objection: Relevance. This testimony relates to Defendants’ 

counterclaim that Plaintiff breached her non-competition 

agreement. That claim has been dismissed. 

181:14 – 181:18 Objection: Lack of Foundation, irrelevant. The testimony here 

establishes nothing, other than the fact that a conversation did 

not exist about something irrelevant to this lawsuit.

c. Karen Nettleton (if Nettleton is not available to testify)

Nettleton, Karen – December 5, 2018

Page / Line Objection

4:10 – 4:13 No objection. 

22:20 – 24:25 Objection, relevance and waste of time. Constructive discharge 

is no longer at issue. And the financial performance of the stores 

has nothing to do with this litigation. 

25:15 – 25:21 No objection. 

38:13 – 39:25 Objection, relevance and waste of time. Keely Newman’s abuse 

of Karen Nettleton has nothing to do with this litigation. Karen 

Nettleton’s job search likewise has nothing to do with this 

litigation. 

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41:17 – 47:18 Objection relevance. Aside from commentary that the Due 

North deal was pushed (41:21-42:13) and the Kahala deal (46:5-

47:8), this excerpt has no relevance. 

49:22 – 50:22 Objection: relevance/hearsay. This testimony relates to 

Defendants’ claim that Plaintiff went to work for a competitor. 

That claim has been dismissed. 

55:17 – 55:24 No objection. 

56:16 – 57:04 No objection. 

59:06 – 60:15 No objection. 

65:24 – 66:15 Objection: Defendants’ reporting structure is irrelevant to the 

remaining claims in this case. 

68:03 – 68:07 No objection. 

82:12 – 84:25 Objection; Lack of Foundation/Hearsay/Relevance. 

85:19 – 86:02 No objection. 

91:07 – 91:17 No objection. 

96:04 – 97:19 No objection. 

106:19 – 106:24 Objection: Relevance/Waste of Time, Improper Character 

testimony. Evidence regarding constructive discharge is no 

longer relevant. 

117:11 – 118:14 Objection: Lack of Foundation. The testimony clearly 

establishes lack of knowledge given the testimony is entirely 

inaccurate. 

120:16 – 120:22 Objection: Lack of Foundation. The testimony clearly 

establishes lack of knowledge. 

121:18 – 124:22 Objection: Lack of Foundation. The testimony clearly 

establishes lack of knowledge given the testimony is entirely 

inaccurate. 

126:05 – 128:05 No objection 

d. Carl Wilson (if Wilson is not available to testify)

Wilson, Carl – December 4, 2018

Page / Line Objection

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4:10 – 4:12 This witness’ testimony is irrelevant as solely related to 

Defendants’ spoliation of evidence claims, which have been 

dismissed. 

5:21 – 45:17 This witness’ testimony is irrelevant as solely related to 

Defendants’ spoliation of evidence claims, which have been 

dismissed. 

e. Jeff Smit (if Smit is not available to testify)

Smit, Jeff – November 30, 2018

Page / Line Objection Cramton’s counter-designation

4:09 – 4:10

4:21:4:25

5:01 – 6:07

6:24 – 7:03

8:18 – 8:23

9:10 – 9:20

9:23 – 12:04

12:09 – 12:15

13:20 – 14:05

15:15 – 16:06

16:15 – 17:05

17:22 – 18:06

18:07 – 18:18

20:08 – 20:11

22:11 – 22:19

30:08 – 30:11

34:06 – 34:12

40:01 – 42:04

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f. John Wuycheck (if Wuycheck is not available to testify)

Wuycheck, John – November 30, 2018

Page / Line Objection Cramton’s counter-designations

6:09 – 6:10

15:10 – 15:12

42:14 – 42:22

43:11 – 43:22 43:17 – 43:22 –

Answer cut off.

43:17 - 44:01

94:02 – 94:14

106:15 – 107:17

Each party hereby acknowledges by signing this Joint Proposed Final Pretrial Order 

that any deposition not listed as provided herein will be disallowed, absent good cause.

H. MOTIONS IN LIMINE

The parties’ motions in limine and responses thereto must be filed as separate 

pleadings and in accordance with the Order Setting Final Pretrial Conference.

I. PENDING MOTIONS

The following motions, other than motions in limine, are pending before the court: 

Defendants’ Motion to Take Judicial Notice.

J. PROCEDURES FOR EXPEDITING TRIAL

The parties intend to utilize the following tools to expedite the trial:

1. Editing depositions to limit the amount of time required for presentation; 

2. Using summary exhibits in place of voluminous documentary evidence; 

3. Making stipulations on authenticity and foundation for most exhibits; and

4. Using the courtroom technology to expedite the presentation of evidence.

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K. ESTIMATED LENGTH OF TRIAL

Five trial days with time split equally between the parties.

1.5 hours for opening statements and closing arguments

15 hours for Plaintiff’s case, including cross-exam of other parties’ witnesses

15 hours for Defendants’ case, including cross-exam of other parties’ witnesses

2 hours for rebuttal

Defendants’ Contentions: Defendants propose the following estimated total length 

of trial for both parties bearing in mind (1) the sheer volume of false statements 

Cramton has made in this case and the number of documents that potentially will be 

necessary to impeach her every time she makes a false statement and (2) the sheer 

volume of documents and the time it will take Defendants to establish that Cramton 

misrepresented her hours worked for GFL in 2016 and 2017. Defendants will be 

prejudiced if they are not afforded the time it will take to refute her false claim that 

she was working nearly every waking hour on a day by day basis in 2016 and 2017 

for GFL. Defendants propose:

2.0 hours for opening statements and closing arguments

15 hours for Plaintiff’s case, including cross-exam of other parties’ witnesses

30 hours for Defendants’ case, including cross-exam of other parties’ witnesses

5 hours for rebuttal

L. JURY DEMAND

Plaintiff’s Position: The parties’ Rule 26(f) discovery plan contains the following 

statement. “The Parties have requested a jury trial and it is uncontested.” Both parties 

jointly filed this. Docket entry 50. Defendants have waived any objections. Defendants 

have also not provided (or obtained in discovery) any evidence to establish that this waiver 

was knowing and voluntary or is otherwise valid in any event. Massok v. Keller Indus., 147 

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F. App'x 651, 661 (9th Cir. 2005) (e.g. a waiver of the right to a jury trial must be made 

knowingly and intentionally); Cty. of Orange v. United States Dist. Court, 784 F.3d 520, 

526 (9th Cir. 2015). Although there is a compelling interest in the preservation of the 

freedom to contract, there is an even greater interest in guarding the fundamental right to a 

jury. See, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, (1988). Since it would be 

Defendants’ burden to show this, and discovery is closed, the jury waivers are invalid. 

Breham v. Asset Acceptance, LLC, No. CV-09-1474-PHX-GMS, 2010 U.S. Dist. LEXIS 

50612, at *5 (D. Ariz. Apr. 27, 2010). 

Additionally, a jury waiver in an ECO promissory note is not sufficient in scope to 

establish a waiver of Plaintiff’s minimum wage claims.

Defendants’ Contention: A jury trial has been requested. The Defendants’ object to 

a jury trial because the parties expressly agreed to waive a jury trial with regard to all counts 

remaining before this Court. The jury demand should be stricken and the trial should be a 

bench trial. 

Cramton’s first contention appears to be that Dkt. 50 dictates all of the positions of 

the parties to the case. If so, Cramton is barred from asserting any theory of her case 

contradicting the fact that her claims under Counts VII, IX and X are entirely based directly 

on the Operating Agreement. That is what she said in Dkt. 50 and what her attorney said to 

Judge Rayes during the scheduling conference. (Dkt. 50, at 3:27-4:1; Dkt 89, at 12:7-

12:17). But that is a losing argument and Cramton even admitted that if the Court excludes 

parol evidence (as it should) and enforced the unambiguous terms of the Operating 

Agreement, that “would effectively dispose of Cramton’s claims.” (Dkt. 279, at 1:28-2:1). 

She must get this Court to allow her to change her theory of the case, violate the parol 

evidence rule, make up a new story and controvert her statements in Dkt. 50 or she will lose 

– as she should. At bottom, Cramton is arguing for this Court to apply a very restrictive 

standard to the Defendants while applying no standards and no rules of law to her. Further, 

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Cramton again misrepresents this case to the Court. Defendants asserted Cramton’s waiver 

of jury trial in their answer and affirmative defenses to the Amended Complaint. (Dkt. 95, 

at 21, ¶177). Defendants also asserted Cramton’s waiver of a jury trial in their MIDP 

responses. It should have been clear that Defendants were seeking to enforce the applicable 

jury waiver.

Next, Cramton misstates the standards of evaluating a jury waiver in Federal Court. 

Under federal law, the right to a jury trial may be waived by a contract that was knowingly 

and voluntarily executed. Vintage Farms, LLC v. Armed Forces Bank NA, 2017 WL 

2775027, at *2 (D. Ariz.). The federal standard is a constitutional minimum that courts use 

to protect litigants’ Seventh Amendment rights. Id. If the applicable state law is more 

protective of the jury trial right than the constitutional minimum, that higher state standard 

must be met. Id. Arizona law, however, is arguably less protective than the federal 

constitutional minimum. Id., citing, Harrington v. Pulte Home Corp,. 211 Ariz. 241, 249-

51 (Ct. App. 2005)(rejecting the proposition that “any waiver of the right to jury trial must 

be knowingly, voluntarily and intelligently made”). Accordingly, Courts have found that 

the federal standard applies in Arizona. Id. Whether a waiver was knowing and voluntary 

is determined by considering the facts of the case. Id., citing, Palmer v. Valdez, 560 F.3d 

965, 968 (9th Cir. 2009). District Courts commonly consider the following factors: (1) 

whether there was a disparity in bargaining power between the parties, (2) the business 

acumen of the party opposing the waiver, (3) whether the opposing party had an opportunity 

to negotiate contract terms, and (4) whether the clause containing the waiver was

inconspicuous. Id. Here, Keely was specifically trying to retain Cramton due to her serious 

family issues. The circumstances Keely and her family faced were well known to Cramton 

and her attorneys. Keely needed Cramton to stay employed and that is why a retention 

award was given to Cramton. Cramton had equal or better bargaining power under the 

circumstances. Keely could not go out and replace Cramton easily while attending to her 

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spouse’s illness and assuming primary care of two 6-year old children. Cramton was the 

second in command, claimed she was qualified, had the business acumen to be second in 

command, possessed the experience and knowledge typical of such a role, claims Keely 

would have no company at all without her, drafted FDDs, sold franchises and did everything 

(according to her story). Indeed, Cramton’s case is based on the notion that for a mere 10 

months of service, she should receive more than $438,000 – a sum vastly exceeding what 

the typical judge or lawyer makes in 10 months. It is more than a little dubious to content 

here that Cramton did not knowingly and voluntarily waive her jury right in relation to the 

claims before this Court. Cramton was represented by multiple attorneys and had every 

opportunity to negotiate these provisions. Specifically, at a minimum Cramton regularly 

consulted with attorney Shelley DiGiacomo and attorney Juliet Peters – she also consulted 

several other attorneys throughout the relevant period. The provisions are conspicuous, 

clear, in all capital letters using the same font size as the rest of the agreements and mutual. 

The claims before this Court are easily within the scope of the jury waivers at issue. For all 

of these reasons, the jury waivers should be found to be effective here. 

With regard to Count IV, Cramton bases her claim on the ECO promissory note and 

alleges that although GFL paid her more than the minimum wage damages she seeks from 

GFL’s revenues and its bank account, the Court should not count those payments as GFL’s 

payment of wages because a completely different entity, ECO had a promissory note with 

Cramton and she claims the Court should treat GFL’s payments as if those payments were 

ECO payments on the promissory note, that way, Cramton can triple dip on her business 

partner. Cramton’s claim in Count IV is related to the ECO promissory note which 

unambiguously states in all caps:

THE PARTIES ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS 

A CONSTITUTIONAL RIGHT, BUT ONE THAT MAY BE WAIVED. AFTER 

CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH 

COUNSEL OF THEIR CHOICE, KNOWLINGLY AND VOLUNTARILY, AND FOR 

THEIR MUTUAL BENEFIT, THE PARTIES WAIVE ANY RIGHT TO TRIAL BY 

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JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR 

ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT. 

(emphasis added).

Counts IV, VII, IX and X all relate to the dealings or the relationship between the 

parties (ECO was a wholly owned subsidiary of ECH) and involve the Operating Agreement 

and Cramton seeks the value of ECH’s asset as if it were the value of her once held unvested 

units, i.e., unvested units controlled by the Operating Agreement. The Operating 

Agreement unambiguously states in §16.9 in all caps: 

NO PARTY TO THIS AGREEMENT OR ANY ASSIGNEE, SUCCESSOR, HEIR, 

OR PERSONAL REPRESENTATIVE OF A PARTY SHALL SEEK A JURY TRIAL 

IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER 

LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS 

AGREEMENT OR ANY OF THE OTHER AGREEMENTS OR THE DEALINGS 

OR THE RELATIONSHIP BETWEEN THE PARTIES. NO PARTY WILL SEEK TO 

CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN 

WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT OR 

HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS SECTION HAVE BEEN 

FULLY DISCUSSED BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL 

BE SUBJECT TO NO EXCEPTIONS. NO PARTY HERETO HAS IN ANY WAY 

AGREED WITH OR REPRESENTED TO ANY OTHER PARTY HERETO THAT THE 

PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL 

INSTANCES. (emphasis added).

These jury waivers should be found to be effective and enforced.

M. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (BENCH 

TRIAL ONLY)

The proposed findings of fact set out above in Defendants’ Contentions in Section 

“D. Contested Issues and Law” of this Joint Proposed Final Pretrial Order are incorporated 

as if set forth in this Section M, including the material issues of fact to be tried and decided 

set forth in Section D.1 and the issues of law to be determined as set forth in Defendants’ 

Contentions in Section D.2 of this Joint Proposed Final Pretrial Order.

N. VOIR DIRE, JURY INSTRUCTIONS, AND FORMS OF VERDICT

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In the alternative to a bench trial, the parties’ proposed jury instructions, proposed 

voir dire, and proposed forms of verdict must be filed in accordance with the instructions 

contained in the Order Setting Final Pretrial Conference.

O. CERTIFICATIONS

The undersigned counsel for each of the parties in this this action do hereby certify 

and acknowledge the following: 

1. All discovery has been completed; 

2. The identity of each witness has been disclosed to opposing counsel; 

3. Each exhibit listed herein is in existence, is numbered, and has been disclosed 

and shown to opposing counsel; 

4. The parties have complied in all respects with the mandates of the Court’s Rule 

16 Case Management Order and Order Setting Final Pretrial Conference; 

5. The parties have made all of the disclosures required by the Federal Rules of Civil 

Procedure (unless otherwise previously ordered to the contrary); and 

6. The parties acknowledge that once this Joint Proposed Final Pretrial Order has 

been signed and lodged by the parties, no amendments to this Order can be made 

without leave of Court.

O. INFORMATION FOR COURT REPORTER

The parties must file a “Notice to Court Reporter” one week before trial in 

accordance with the instructions provided by this Court.

DATED this 22nd day of May, 2020.

KERCSMAR & FELTUS PLLC

By: s/ Todd Feltus

Todd Feltus

Molly Rogers

7150 East Camelback Road, Suite 285

Scottsdale, Arizona 85251

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MATHESON & MATHESON PLC

Michelle R. Matheson 

Emily Armstrong

15300 North 90th Street, Suite 550

Scottsdale, Arizona 85260

Attorneys for Plaintiff

 NEWMAN LAW, LLC

By: s/

Kelli Newman

119 Tanglewood Drive

Glen Ellyn, Illinois 60137

 Attorneys for Defendants Eat Clean Holdings, LLC 

 and Keely Newman

 CRONUS LAW PLLC

By: s/

Larry J. Cohen

Erin A. Hertzog

2601 East Thomas Road, Suite 235

Phoenix, Arizona 85016

Attorneys for Defendants Grabbagreen Franchising, LLC; 

Eat Clean Holdings, LLC; and Keely Newman

Based on the foregoing,

IT IS ORDERED that this Joint Proposed Final Pretrial Order jointly submitted by 

the parties is hereby APPROVED and ADOPTED as the Final Pretrial Order of this Court.

Dated this 27th day of May, 2020.

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