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PLAINTIFFS’ OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ENTRY OF AN ORDER STRIKING
PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP CHARLES N. FREIBERG (SBN 70890) BRIAN P. BROSNAHAN (SBN 112894) JACOB N. FOSTER (SBN 250785) 101 California Street, Suite 2300 San Francisco, California 94111 Telephone: (415) 421-6140 Facsimile: (415) 398-5030
LEVINE & MILLER HARVEY R. LEVINE (SBN 61879) CRAIG A. MILLER (SBN 116030) LEVINE & MILLER 550 West C Street, Suite 1810 San Diego, CA 92101-8596 Telephone: (619) 231-9449 Facsimile: (619) 231-8638
Attorneys for Plaintiffs JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation,
Defendant.
CLASS ACTION
CASE NO.: CV 10-9198 JVS (RNBx)
Formerly Case No.: 3:10-cv -04852 JSW from Northern District of CA
PLAINTIFFS’ OPPOSITION TO DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S EX PARTE APPLICATION FOR ENTRY OF AN ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Judge James V. Selna Courtroom: 10C
Case 2:10-cv-09198-JVS -RNB Document 318 Filed 08/29/12 Page 1 of 15 Page ID #:14496
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
i
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
TABLE OF CONTENTS
Page(s)
I. LSW MAKES NO ATTEMPT TO DEMONSTRATE THAT EXTRAORDINARY EX PARTE RELIEF IS WARRANTED. ...................1
II. LSW’S PROPOSED MOTION TO STRIKE PLAINTIFFS’ EVIDENTIARY OBJECTIONS IS MERITLESS. ........................................4
A. A Party Has A Right to Submit Written Objections to Evidence And Need Not Move to Strike. .............................................................4
B. The Local Rules Contain No Page Limitations for Evidentiary Objections. ............................................................................................6
C. The Court’s Order Regarding Page Limits Does Not Apply to Evidentiary Objections..........................................................................8
D. Plaintiffs’ Objections Were Procedurally Proper In Other Respects. ...............................................................................................9
III. CONCLUSION .............................................................................................10
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
ii
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
Table of Authorities
Page(s)
CASES
AF Holdings LLC v. Doe, 2012 U.S. Dist. LEXIS 104396 (S.D. Cal. July 25, 2012)
.........................................................................................................................3
Herrera v. Louisville Ladder Group, LLC, 2009 U.S. Dist. LEXIS 107384 (C.D.
Cal. Nov. 16, 2009) .........................................................................................5
Kesler v. IKEA U.S., Inc., 2008 U.S. Dist. LEXIS 97555 (C.D. Cal. Feb. 4, 2008).5
Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp. 488 (C.D. Cal.
1995)........................................................................................................1, 2, 3
Scott v. Ross, 140 F.3d 1275 (9th Cir. 1998).............................................................5
Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880 (9th Cir. 1983)...........................5
Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209
F.R.D. 159 (C.D. Cal. 2002) ...........................................................................6
United States v. Jamerson, 549 F.2d 1263 (9th Cir. 1977).......................................4
RULES
Fed. R. Evid. 103(a)...............................................................................................5, 6
Local Rule 11-6 .....................................................................................................6, 8
Local Rule 11-7 .....................................................................................................6, 7
Local Rule 16.2........................................................................................................10
Local Rule 16-2.6 ....................................................................................................10
Local Rule 7-19 .........................................................................................................2
Local Rule 7-2 ...........................................................................................................9
TREATISES
2-12 Moore’s Fed. Prac. – Civ. § 12.37 (MB 2012) .................................................5
Weinstein’s Fed. Evid. § 103.02................................................................................4
William W. Schwarzer, A. Wallace Tashima, and James M. Wagstaffe, Cal. Prac.
Guide: Fed. Proc. Before Trial, §§ 12:94-95 (Rutter 2012)............................5
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
1
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
LSW’s motion to strike Plaintiffs’ evidentiary objections should be denied
because (1) the evidentiary objections are procedurally and substantively proper;
and (2) LSW has not made the requisite showing of “irreparable prejudice” that is
required to justify ex parte relief. LSW’s motion advances the novel contention
that evidentiary objections are prohibited unless filed in the form of a “motion to
strike,” and therefore that the Court should strike Plaintiffs’ evidentiary objections
to fourteen declarations that LSW submitted in support of its opposition to class
certification. LSW’s position is contrary to Federal Rule of Evidence 103, case
law, and persuasive secondary source authority, which all clearly establish that
Plaintiffs are entitled to file objections to evidence and are not required to file a
motion to strike. LSW is also wrong in asserting that Plaintiffs’ objections were
subject to page limitations imposed by Local Rule or order of the Court. Plaintiffs’
objections raise appropriate evidentiary issues regarding LSW’s fourteen
declarations (which themselves totaled 147 pages (excluding exhibits), and which
similarly were not subject to page limitations concerning the length of briefs).
Since Plaintiffs offered to stipulate to an order shortening time so that LSW’s
motion to strike could be heard on the same date as the motion for class
certification, there was no need for LSW to file its motion ex parte and no basis for
the extraordinary relief sought by an ex parte order.
I. LSW MAKES NO ATTEMPT TO DEMONSTRATE THAT EXTRAORDINARY EX PARTE RELIEF IS WARRANTED.
“Ex parte applications are solely for extraordinary relief and should be used
with discretion.” See Initial Order Following Filing of Complaint Assigned to
Judge Selna at 3 (citing Mission Power Eng’g Co. v. Continental Cas. Co., 883 F.
Supp. 488 (C.D. Cal. 1995)). Accordingly, a party seeking ex parte relief must
demonstrate, as a threshold matter, that extraordinary relief is warranted – that is,
“establish why the accompanying proposed motion for the ultimate relief requested
cannot be calendared in the usual manner,” with reasons “supported by…affidavits
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
2
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
or declarations whose contents would be admissible if the…affiants, or declarants
were testifying in court.” Mission Power Eng’g, 883 F. Supp. at 492; see L.R. 7-
19 (“An application for an ex parte order shall be accompanied by a memorandum
containing…the reasons for the seeking of an ex parte order.”). To justify ex parte
relief, a party must show (1) that it will be “irreparably prejudiced if the underlying
motion is heard according to regular noticed motion procedures,” and (2) that it is
“without fault in creating the crisis that requires ex parte relief, or that the crisis
occurred as a result of excusable neglect.” Mission Power Eng’g, 883 F. Supp. at
492.
In its ex parte application, LSW does not attempt to justify the extraordinary
relief it is seeking. Nowhere does LSW explain why its motion to strike cannot be
heard according to regular noticed motion procedures (even if on shortened time –
as Plaintiffs offered to stipulate). See Declaration of Brian P. Brosnahan in
Support of Plaintiffs’ Opposition to LSW’s Ex Parte Application (“Brosnahan
Dec.”) ¶¶4-5 and Ex. B. Nor does LSW explain how it would be “irreparably
prejudiced” if LSW is not “allowed to go to the head of the line in front of all other
litigants and receive special treatment.” Mission Power Eng’g, 883 F. Supp. at
492. LSW also failed to submit any affidavit or declaration in support of its
request for ex parte relief. The sole declaration submitted, from LSW’s counsel,
Joel Fleming, Esq., supplies no reasoning to support the ex parte application and
attaches one document, an email, which itself supplies no justification for ex parte
relief and instead simply reflects LSW’s (incorrect) interpretation of this Court’s
orders and the Federal Rules. See Declaration of Joel Fleming (“Fleming Dec.”),
Ex. 1.
Failure to justify its application for ex parte relief is by itself sufficient
grounds for denying LSW’s application. See, e.g., Mission Power Eng’g, 883 F.
Supp. at 492 (“[M]any ex parte motions are denied…because the papers do not
show that bypassing the regular noticed motion procedure is necessary.”); AF
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
3
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
Holdings LLC v. Doe, 2012 U.S. Dist. LEXIS 104396, at *3-4 (S.D. Cal. July 25,
2012) (denying ex parte application because moving party did not “discuss
whether its request is a proper subject for ex parte consideration or why the regular
noticed motion procedures must be bypassed”).
When Plaintiffs asked LSW to explain “why [it] believe[s] [its] motion
needs to be resolved on an ex parte basis” (see Brosnahan Dec. ¶¶4, 7 and Ex. D),
LSW could supply no justification:
It certainly seems extraordinary for Plaintiffs to have unilaterally submitted more than eight times the allowed number of pages. In any event, it is only efficient for the parties and the Court to know ahead of time what arguments are in play for the hearing. Either way, an ex parte application is appropriate, and we will file this evening as we described.
See Brosnahan Dec. ¶8 and Ex. E. The fact that Plaintiffs’ proper submission of
evidentiary objections may “seem[] extraordinary” to LSW, or that it may be
“efficient for the parties and the Court to know ahead of time what arguments are
in play,” does not come close to establishing irreparable (or any) prejudice to LSW
to justify the extraordinary relief of an ex parte order. Cf. Mission Power Eng’g,
883 F. Supp. at 492 (“[F]iling an ex parte motion…is the forensic equivalent of
standing in a crowded theater and shouting, ‘Fire!’ There had better be a fire.”).
Even if LSW’s “reason” were to ensure that its motion to strike be heard in
conjunction with the Court’s September 10, 2012 class certification hearing (which
it does not say in its papers), that, too, fails to meet the “irreparable prejudice”
standard, particularly because Plaintiffs offered to “discuss a stipulation for an
order shortening time so [LSW could] file a motion to strike to be heard on
September 10, 2012,” but LSW ignored Plaintiffs’ proposal. See Brosnahan Dec.
¶¶5-6 and Exs. B, C. To the contrary, it is Plaintiffs who would be prejudiced by
ex parte practice if their objections were stricken without a hearing, particularly
since, as described in Part II below, no order or rule gave Plaintiffs notice that they
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
4
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
would not be permitted to file objections as they did.
The only rationale Plaintiffs can imagine for this ex parte application is so
that LSW can obtain a ruling on its motion to strike in advance of the class
certification hearing and preempt the Court from reviewing certain of Plaintiffs’
objections – for instance, to the Pfeifer declaration – which make plain the fatal
(indeed embarrassing) deficiencies in LSW’s supposed “expert” testimony.1 This,
too, fails to justify LSW’s ex parte application.
II. LSW’S PROPOSED MOTION TO STRIKE PLAINTIFFS’ EVIDENTIARY OBJECTIONS IS MERITLESS. A. A Party Has A Right to Submit Written Objections to Evidence And Need Not Move to Strike.
LSW’s contention that Plaintiffs cannot file objections to evidence without
filing a motion to strike is unsupported by the Federal Rules, Local Rules, or case
law. In fact, Plaintiffs have an inherent right to object to any proffered evidence
that may be objectionable. Indeed, “[i]t is a fundamental rule of evidence that an
objection not timely made is waived. If testimony, even though improper, is
introduced into evidence without objection, it becomes part of the record and is
available to be considered for its probative value by the trier of fact.” United
States v. Jamerson, 549 F.2d 1263, 1266 (9th Cir. 1977) (citing Fed. R. Evid.
103(a)); see Weinstein’s Fed. Evid. § 103.02 (“Rule 103…forc[es] parties to object
in the trial court or risk being foreclosed from raising the error on appeal.”).
Plaintiffs were entirely within their rights and the pertinent procedural rules to
make timely written objections. Id.
Nor were Plaintiffs required, as LSW suggests, to present their objections in
the form of a motion to strike. Rule 103(a), for instance, expressly recognizes that
1 For instance, Mr. Pfeifer was not familiar with the actual value test, made no attempt to find out about it, and received no instructions on it from LSW’s counsel; his testimony is based simply on his own views of “fairness.” Reply Declaration of Brian P. Brosnahan ISO Class Certification (Dkt. 293) ¶14 and Ex. H (Pfeifer Dep. at 28:1-21; 299:10-301:22; 387:18-388:7; 390:22-391:6).
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
5
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
a party may choose either to object or to move to strike the offending evidence.
Fed. R. Evid. 103(a)(1)(A) (claim of error is preserved if the party “timely objects
or moves to strike); see also William W. Schwarzer, A. Wallace Tashima, and
James M. Wagstaffe, Cal. Prac. Guide: Fed. Proc. Before Trial, §§ 12:94-95
(Rutter 2012) (where a motion is based on incompetent or inadmissible evidence,
the only requirement is that the objection “be in writing”). In addition, numerous
courts in this circuit, including this Court, have entertained challenges to evidence
in the form of written objections as opposed to a motion to strike, including
challenges to expert testimony premised on Daubert. See, e.g., Kesler v. IKEA
U.S., Inc., 2008 U.S. Dist. LEXIS 97555, at *28-29 (C.D. Cal. Feb. 4, 2008)
(Selna, J.) (considering evidentiary objections to declarations submitted on motion
for class certification); Herrera v. Louisville Ladder Group, LLC, 2009 U.S. Dist.
LEXIS 107384, at *2-3 (C.D. Cal. Nov. 16, 2009); see also Scott v. Ross, 140 F.3d
1275, 1285 (9th Cir. 1998) (Daubert challenge was waived because party failed to
“object or move to strike” the expert testimony). LSW provides no authority for
its suggestion that Plaintiffs were required to assert their objections via a motion to
strike.
Indeed, except in the context of a motion to strike testimony on the record at
trial or deposition where no objection could be timely made (e.g., because the
answer was not responsive to the question), many authorities expressly reject the
notion that objections to evidence should be presented in the form of a motion to
strike. “Only material included in a ‘pleading’ may be the subject of a motion to
strike, and courts have been unwilling to construe the term broadly.” 2-12 Moore’s
Fed. Prac. – Civ. § 12.37 (MB 2012); Sidney-Vinstein v. A.H. Robins Co., 697 F.2d
880, 885 (9th Cir. 1983) (“Under the express language of the rule, only pleadings
are subject to motions to strike. The appellees have cited no cases that have
construed F.R.Civ.P. 12(f) as allowing a district court to strike material not
contained in the pleadings of the case.”). Indeed, courts in this district, when
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
6
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
presented with evidentiary challenges styled as a “motion to strike,” have
construed such motions as objections to evidence. See Thomas & Thomas
Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 161
(C.D. Cal. 2002) (Cooper, J.) (on defendants’ motion to strike plaintiffs’ expert
declaration, court “notes that the present Motion is not properly a motion to strike,
which should be addressed to the pleadings only,” but construed the Motion as “an
objection to evidence offered in support of class certification”).
B. The Local Rules Contain No Page Limitations for Evidentiary Objections.
LSW argues that Plaintiffs’ evidentiary objections should be stricken
because they are purportedly subject to and in violation of certain page limitations
set by the Local Rules. LSW is wrong. There is nothing in the rules establishing
page limits for evidentiary objections. Local Rule 11-6, which LSW cites, applies
only to a “memorandum of points and authorities, pre-trial brief, trial brief, or post-
trial brief” (none of which can exceed 25 pages in length), not to evidentiary
objections. The Local Rules also explicitly address appendices and caution that
“[a]ppendices shall not include any matters which properly belong in the body of
the memorandum of points and authorities.” L.R. 11-7. But there is no parallel
rule applicable to evidentiary objections. LSW’s contention that Plaintiffs’
objections to evidence are actually “additional briefing” (LSW App. at 3) is
equally false. Plaintiffs’ objections are narrowly limited to the admissibility of
LSW’s declarations. And the length of the objections is due only to the length of
the declarations (147 pages, excluding exhibits) and to Plaintiffs’ obligation to
identify with specificity the testimony to which Plaintiffs object and the “specific
ground” for each objection. See Fed. R. Evid. 103(a).2
2 For instance, Plaintiffs’ objection that LSW is “equitably estopped” from offering the five agent declarations “draws force from” (LSW App. at 5) Federal Rule of Evidence 403. Plaintiffs’ Objections to Agent Declarations (Dkt. 302) at 2-5. And Plaintiffs’ “substantive criticisms of Pfeifer’s analysis” (LSW App. at 5) are proper
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
7
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
Further, LSW’s repeated complaint about the 168-page combined length of
the objections is misleading. The page length of the objections is inflated both by
Plaintiffs’ direct quotation of (often lengthy) testimony from LSW’s declarants,
and by Plaintiffs’ reiteration of substantive objections that apply to multiple
portions of LSW’s proffered testimony. For instance, the sum and substance of
Plaintiffs’ objections to LSW’s five agent declarations are set forth in a mere 13
pages, which are then supplemented by Plaintiffs’ particular objections to specific
portions of testimony on the same grounds as set forth in the preceding 13 pages.
See Plaintiffs’ Objections to Agent Declarations (Dkt. 302). The same is true of
Plaintiffs’ objections to LSW’s expert declarations, which are generally set out in 7
pages and supplemented by specific objections, on the same grounds, to the
offending testimony. See Plaintiffs’ Objections to Expert Declarations (Dkt. 301).
LSW, on the other hand, availed itself of additional pages of argument
(despite its claim that it “worked diligently to abide by” the page limits (LSW App.
at 3)) by filing four “appendices” that assert extensive arguments not set forth in
the opposition brief covering the full range of issues on this motion, not simply
evidentiary matters. For instance, in Appendix C, LSW explicitly responds to the
list of common questions raised in Plaintiffs’ opening memorandum of law, which
LSW did not address in its opposition brief. Likewise, in Appendices A, B, and D,
LSW provides additional argument to elaborate on general contentions it makes in
the brief regarding individual issues. These appendices are not “just graphical
representations of arguments and concepts contained in the brief itself” (LSW App.
at 4 n.2); instead, they present “matters which properly belong in the body of the
memorandum of points and authorities” in direct contravention of Local Rule 11-
7.3
Rule 702 objections. Plaintiffs’ Objections to Expert Declarations (Dkt. 301). 3 LSW notes that Plaintiffs “replied in kind to these appendices” (LSW App. at 4 n.2) but this, too, was not an attempt to secure more pages. Plaintiffs have asked
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
8
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
Finally, even if LSW were correct that Plaintiffs’ objections should have
been made as motions to strike, subject to the 25-page limit of Local Rule 11-6,
LSW is incorrect that Plaintiffs’ objections would not comply with the applicable
page limitations “even if each set of objections were its own motion.” LSW App.
at 5. LSW submitted, and Plaintiffs objected to, fourteen separate declarations.
Accordingly, Plaintiffs could have submitted fourteen separate motions to strike
each individual declaration, totaling a potential 350 pages of motions, plus an
additional 350 pages in reply. Clearly, Plaintiffs’ 168 pages of evidentiary
objections (approximately 12 pages per declaration) would comply with the
applicable page limitations if they were instead construed as motions to strike.
C. The Court’s Order Regarding Page Limits Does Not Apply to Evidentiary Objections.
LSW’s “page limits” argument fails equally with respect to the Court’s May
4, 2012 Order concerning page limitations for the parties’ class certification briefs.
That Order – and the parties’ stipulation on which it was based – pertains solely to
page limits for the parties’ “memorand[a] of law.” See May 4, 2012 Order (Dkt.
222). Nothing in the Order remotely suggests that it is intended to apply to
evidentiary objections, and LSW’s contrary reading makes no sense. As discussed
above, there are no page limits for objections set out in the Local Rules, meaning
that under the presumptive page limits (see L.R. 11-6), Plaintiffs could have filed
50 pages of briefing (and LSW could have filed 25 pages of briefing), plus any
number of pages of evidentiary objections. According to LSW’s interpretation of
the Court’s Order, however, Plaintiffs would have even less than what the Local
Rules provide because their combined 50 pages of briefing (30 for the opening
the Court to disregard the appendices as violating Local Rule 11-7, in which case Plaintiffs’ responses would be moot. Plaintiffs supplied substantive responses to the appendices only in the alternative should the Court decide to consider them.
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
9
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
brief and 20 for the reply)4 also would have to include objections to LSW’s
evidence. There is nothing in the Order or the Local Rules to suggest that this was
the Court’s intention.
Further, contrary to LSW’s contention that the parties’ stipulation regarding
class briefing was a “comprehensive briefing plan” (LSW App. at 3), that
stipulation, and the Order that followed, was limited to setting filing deadlines for
“briefs” and page limitations for the parties’ “memoranda of law.” See Joint
Stipulation Regarding Class Certification Briefing Schedule and Page Limits (Dkt.
219) ¶¶1-2; May 4, 2012 Order (Dkt. 222) ¶¶1-2.5
D. Plaintiffs’ Objections Were Procedurally Proper In Other Respects.
Finally, LSW contends that Plaintiffs’ objections should be stricken because
Plaintiffs did not follow the proper procedures, including that they purportedly
failed to meet and confer with LSW about their objections or provide LSW with an
opportunity to respond. This argument lacks merit because the procedural rules
LSW cites apply to motions, not objections to evidence, which are not
“proceedings.” See L.R. 7-2. Indeed, LSW admits that these procedures are only
applicable to a motion to strike, stating that “if Plaintiffs wanted to strike evidence
submitted by LSW, they did not follow the proper procedure for doing so.” LSW
App. at 5 (emphasis added). But Plaintiffs did not move to “strike” LSW’s
evidence; they objected to it.
Accordingly, none of the procedural rules LSW cites applies to Plaintiffs’
objections. For instance, there is no general meet and confer requirement for
4 The Court provided LSW with 30 pages for its opposition brief instead of the usual 25, but did not enlarge Plaintiffs’ total number of pages.
5 LSW suggests that Plaintiffs contacted LSW about a deadline for objections because Plaintiffs were “struggling with page limitations.” LSW App. at 4. In fact Plaintiffs had no concerns about page limits but wanted to agree on a deadline for objections because the Local Rules specify no deadline. LSW rejected this offer, so Plaintiffs filed objections with their reply papers. Brosnahan Dec. ¶3 & Ex. A.
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
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KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
evidentiary objections. The sole exception, Local Rule 16-2.6, cited by LSW,
requires the parties to “attempt to resolve any objections to the admission of
testimony, documents, or other evidence” at a meeting of counsel before the final
pretrial conference (see L.R. 16.2), not any time a party intends to object to the
opposing party’s evidence on a motion. This makes sense because, as a general
matter, no party would agree to strike its own evidence on a motion. The parties’
“meet and confer” process with respect to LSW’s motion to strike the Brockett
declaration underscores LSW’s insistence on form over substance. During a break
in Dr. Brockett’s deposition, counsel for LSW asked counsel for Plaintiffs if they
would stipulate to the wholesale withdrawal or striking of Dr. Brockett’s
declaration, and Plaintiffs declined; this was the whole of the parties’ meet and
confer. See Brosnahan Dec. ¶2. LSW does not suggest that meet and confer
would have been any more fruitful with respect to any of the declarations as to
which Plaintiffs have objected.
Nor were Plaintiffs required to provide LSW with notice or an opportunity
to respond, as they would on a motion. It is true that submitting objections in the
form of a motion to strike offers a different procedural framework with certain
procedural requirements applicable to motions, such as notice, built-in time for
opposition, and built-in time for the moving party to reply. But by submitting
written objections and not a motion to strike, Plaintiffs have not violated any such
rules, but instead have foregone their opportunity to submit a reply in support of
their objections.6 This does not make their objections improper.
III. CONCLUSION
Because LSW failed to provide any justification for the extraordinary relief
of an ex parte motion, and because LSW’s proposed motion to strike Plaintiffs’
6 Plaintiffs note that with respect to LSW’s objections to the declaration of Dr. Brockett (presented via motion to strike), LSW improperly used its reply brief to advance new arguments not raised in its opening brief.
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
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KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
evidentiary objections lacks merit, LSW’s ex parte application should be denied.
DATED: August 29, 2012 KASOWITZ BENSON TORRES & FRIEDMAN LLP
By: /s/ Brian P. Brosnahan
Brian P. Brosnahan
Attorneys For Plaintiffs JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated
Case 2:10-cv-09198-JVS -RNB Document 318 Filed 08/29/12 Page 14 of 15 Page ID #:14509
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OPPOSITION TO LSW’S EX PARTE APPLICATION FOR ORDER STRIKING PLAINTIFFS’ OBJECTIONS
Case No. CV 10-04852 JSW
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KASOWITZ, BENSON, TORRES & FRIEDMAN LLP
101 CALIFORNIA STREET, SUITE 2300
SAN FRANCISCO, CALIFORNIA 94111
PROOF OF SERVICE
I am a resident of the State of California, over the age of eighteen years, and
not a party to the within action. My business address is Kasowitz, Benson, Torres & Friedman LLP, 101 California Street, Suite 2300, San Francisco, California 94111. On August 29, 2012, I served the within document(s):
PLAINTIFFS’ OPPOSITION TO DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S EX PARTE APPLICATION FOR ENTRY OF AN ORDER STRIKING PLAINTIFFS’ OBJECTIONS
DECLARATION OF BRIAN P. BROSNAHAN IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT LIFE INSURANCE COMPANY OF THE SOUTHWEST’S EX PARTE APPLICATION FOR ENTRY OF AN ORDER STRIKING PLAINTIFFS’ OBJECTIONS
I electronically filed the document(s) listed above via the CM/ECF system.
Jonathan A. Shapiro WILMER CUTLER PICKERING HALE AND DORR LLP 950 Page Mill Road Palo Alto, CA 94304
/s/ Jo Anne Childress Jo Anne Childress
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