OPP. TO LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON MOT. RE CLASS NOTICE

Case No. CV 10-09198 JVS

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

LAW OFFICES OF CRAIG A. MILLER CRAIG A. MILLER (SBN 116030) 225 Broadway, Suite 1310 San Diego, CA 92101 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,

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 TO RESCHEDULE HEARING ON PLAINTIFFS’ MOTION FOR APPROVAL OF CLASS NOTICE

Judge James V. Selna Courtroom: 10C

Case 2:10-cv-09198-JVS-RNB Document 406 Filed 03/18/13 Page 1 of 11 Page ID #:18033

OPP. TO LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON MOT. RE CLASS NOTICE

Case No. CV 10-09198 JVS

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300

SAN FRANCISCO, CALIFORNIA 94111

TABLE OF CONTENTS

Page(s)

I. LSW DOES NOT EVEN ATTEMPT TO DEMONSTRATE THAT EXTRAORDINARY EX PARTE RELIEF IS WARRANTED. ...................1

II. THERE IS NO GOOD CAUSE FOR THE CONTINUANCE LSW SEEKS, WHICH IS AN IMPROPER ATTEMPT TO CURE THE UNTIMELINESS OF ITS MOTION CONCERNING CLASS NOTICE ISSUES............................................................................................4

III. CONCLUSION ...............................................................................................8

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OPP. TO LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON MOT. RE CLASS NOTICE

Case No. CV 10-09198 JVS

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)

.........................................................................................................................2

In re Intermagnetics Am., 101 B.R. 191 (C.D. Cal. 1989)........................................4

Mission Power Eng’g Co. v. Continental Cas. Co., 883 F. Supp. 488 (C.D. Cal.

1995)....................................................................................................1, 2, 3, 4

RULES

Local Rule 7-19 .........................................................................................................2

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OPP. TO LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON MOT. RE CLASS NOTICE

Case No. CV 10-09198 JVS

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300

SAN FRANCISCO, CALIFORNIA 94111

LSW’s ex parte application to reschedule the hearing date on Plaintiffs’

Motion for Approval of Class Notice (filed March 11, 2013) (Dkt. 403) is an

improper attempt to delay Plaintiffs’ motion in order to try to cure the untimeliness

of LSW’s impending motion for appointment of a special master in connection

with the class notice, which should have been filed on March 11 in accordance

with the Court’s Fourth Amended Pretrial Scheduling Order. LSW claims it needs

a continuance because of personal scheduling conflicts of its counsel, Jonathan

Shapiro, but the record makes plain that LSW’s purpose in seeking this

continuance is, in the main, to delay the hearing on Plaintiffs’ motion so that it is

set for hearing simultaneously with LSW’s untimely motion. Accordingly, there is

no good cause for the continuance LSW seeks. Nor has LSW made the requisite

showing that extraordinary relief is warranted here, particularly where LSW was

aware of Plaintiffs’ intention to notice their motion for hearing on April 8, 2013

and could have notified Plaintiffs of this purported conflict before the hearing date

was set (and could have timely filed its motion). LSW inexplicably failed to do so

and provides no explanation for this failure. Examination of the meet and confer

emails shows that the alleged scheduling problem is entirely of LSW’s own

making and that its ex parte application is pure gamesmanship. There is no basis

for a continuance or for the extraordinary relief LSW seeks here, and, thus, its ex

parte application should be denied.

I. LSW DOES NOT EVEN 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)); Mission Power Eng’g Co., 883 F. Supp. at 490 (“Ex

parte motions are rarely justified.”) (emphasis added). Accordingly, a party

seeking ex parte relief must demonstrate, as a threshold matter, that extraordinary

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OPP. TO LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON MOT. RE CLASS NOTICE

Case No. CV 10-09198 JVS

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300

SAN FRANCISCO, CALIFORNIA 94111

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 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 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. Nor does LSW attempt to show, let alone meet its burden of showing, 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.” Id. LSW’s failure to justify its

application for ex parte relief is by itself sufficient grounds for denying LSW’s

application. See id. (“[M]any ex parte motions are denied…because the papers do

not show that bypassing the regular noticed motion procedure is necessary.”); AF

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”).

Putting aside these defects in LSW’s application, the record makes clear that

no ex parte relief is warranted under the circumstances. First, there is no

“irreparable prejudice” here because, as set forth below, LSW’s proposed motion

for a continuance is meritless and, thus, “failure to hear it cannot be prejudicial.”

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OPP. TO LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON MOT. RE CLASS NOTICE

Case No. CV 10-09198 JVS

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300

SAN FRANCISCO, CALIFORNIA 94111

Mission Power Eng’g, 883 F. Supp. at 492.

Second, the record plainly shows that LSW was at fault in creating the

purported crisis on the basis of which it now seeks ex parte relief. See id.

Plaintiffs informed LSW on Tuesday, March 5 – six days before Plaintiffs filed

their motion – that they would notice their motion concerning class notice issues

for hearing on April 8. See Declaration of Charles N. Freiberg in Opposition to

LSW’s Ex Parte Application (“Freiberg Dec.”) ¶2, Ex. A. LSW could have

requested a continuance due to Mr. Shapiro’s purported familial issues at any time

between March 5 and March 11, when Plaintiffs filed their motion. LSW did not

do so.1 Id. Instead, it was not until Wednesday, March 13 – two days after

Plaintiffs filed their motion and set the hearing date – that Mr. Shapiro informed

Plaintiffs that April 8 would be “rough” for him due to a “family/kid conflict.” See

Freiberg Dec. ¶3, Ex. B; Declaration of Jonathan Shapiro (“Shapiro Dec.”), Ex. A.

The nature of the purported “family/kid” conflict remains unexplained, as does

how it apparently went from “rough” to impossible to manage.

Further, there is no indication in the record or in LSW’s ex parte application

that Mr. Shapiro was not aware of this purported conflict as of March 5 (or

anytime before Plaintiffs’ motion was filed on March 11) and, thus, that he could

not have requested an alternate hearing date before Plaintiffs filed their motion –

thereby avoiding the ex parte relief LSW now seeks. If anything, the record

suggests that Mr. Shapiro was aware of his purported scheduling conflict

sufficiently in advance, and that his belated request for a continuance is what

“created the crisis that requires ex parte relief.” In his March 15 email, Mr.

Shapiro stated that this scheduling issue could have been “avoided” if Plaintiffs

had “simply ask[ed] [LSW] if a date works before unilaterally assuming as much.”

1 Conveniently, LSW fails to mention in its application that it was informed in advance by Plaintiffs of the April 8 hearing date.

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OPP. TO LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON MOT. RE CLASS NOTICE

Case No. CV 10-09198 JVS

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300

SAN FRANCISCO, CALIFORNIA 94111

Freiberg Dec. ¶5, Ex. B; Shapiro Dec., Ex. A. This email suggests that Mr.

Shapiro knew about this conflict before he raised it on March 13 because had

Plaintiffs “simply asked” LSW about the April 8 hearing date (before setting the

hearing for that date, on March 11), LSW would have informed Plaintiffs of this

conflict and “avoided” this scheduling dispute. But Plaintiffs did notify LSW of

their proposed hearing date, on March 5, giving LSW ample time to request an

alternate date. The fact that LSW instead waited until two days after Plaintiffs

filed their motion to raise this issue demonstrates at best inexcusable neglect on

LSW’s part, or at worst a last-ditch effort by LSW to use Mr. Shapiro’s purported

scheduling conflict as an excuse for a continuance that LSW hopes will obscure the

untimeliness of its own motion. Neither rationale justifies the extraordinary relief

sought here. See Mission Power Eng’g, 883 F. Supp. at 493 (“The moving party

must also show that it…could not have, with due diligence, sought to obtain” the

requested relief earlier.); In re Intermagnetics Am., 101 B.R. 191, 193 (C.D. Cal.

1989) (“Ex parte applications are not intended to save the day for parties who have

failed to present requests when they should have.”).

II. THERE IS NO GOOD CAUSE FOR THE CONTINUANCE LSW SEEKS, WHICH IS AN IMPROPER ATTEMPT TO CURE THE UNTIMELINESS OF ITS MOTION CONCERNING CLASS NOTICE ISSUES.

Not only does LSW fail to justify its request for ex parte relief, but there

also is no good cause for the continuance LSW seeks. See Standing Orders (“To

request a continuance of any scheduled court proceeding, counsel must make such

a request…with a statement of good cause included in the request.”). First, there is

no showing of good cause simply because the hearing date “presents scheduling

problems” for Mr. Shapiro, or because the hearing date would be “rough” for him.

See LSW Ex Parte Application at 3; Freiberg Dec. ¶3, Ex. B; Shapiro Dec., Ex. A.

Absent more, these vague and unexplained assertions of difficulty do not satisfy

good cause to reschedule the hearing, particularly under circumstances where LSW

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OPP. TO LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON MOT. RE CLASS NOTICE

Case No. CV 10-09198 JVS

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300

SAN FRANCISCO, CALIFORNIA 94111

knew the hearing date in advance and failed to make this request until two days

after Plaintiffs filed and noticed their motion. Second, although LSW claims that

its request is based on Mr. Shapiro’s personal scheduling conflicts, the record

makes plain that LSW’s request for a continuance is an improper attempt to delay

the hearing on Plaintiffs’ motion concerning class notice issues in order to obscure

the fact that LSW’s cross-motion (which it “will file on Monday” (LSW’s Ex Parte

Application at 3)) is untimely.2 This, too, does not qualify as “good cause.”

In the Fourth Amended Pretrial Scheduling Order, the Court explicitly

ordered that “any motions concerning the class notice and any disputes among the

parties concerning the content of the class notice” must be filed within ten days

after the Ninth Circuit’s denial of LSW’s Rule 23(f) petition – that is, by Monday,

March 11. See Dkt. 362 ¶2. Plaintiffs filed a motion for approval of their

proposed class notice on that date, which addresses a number of class notice issues,

including LSW’s position that “the special master process must begin immediately

– in concert with the ‘response-required class notice.’” See Freiberg Dec. ¶6, Ex.

C (emphasis added). LSW informed Plaintiffs in its March 8 letter that it would

file its own motion regarding “the timing of the special master process” in

connection with class notice. Id., Ex. C at 2. Plaintiffs thus expected that LSW

would file such a motion on March 11, 2013, but LSW did not do so.

LSW then requested, on March 13, to move the April 8 hearing date on

Plaintiffs’ motion to April 22 (or, alternatively, April 15) because of Mr. Shapiro’s

personal schedule. See Part I, supra. In that request, LSW made no mention of the

fact that it planned to file a separate motion concerning the appointment of a

special master in connection with the class notice. See Freiberg Dec. ¶3, Ex. B;

2 Plaintiffs do not believe that “rescheduling the hearing would somehow also extend the March 11 deadline” for filing motions concerning class notice issues (LSW Ex Parte Application at 3), but rather that LSW is attempting to reschedule the hearing so that LSW’s untimely motion is heard at the same time as Plaintiffs’ motion in an attempt to obscure the fact that its motion is untimely.

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OPP. TO LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON MOT. RE CLASS NOTICE

Case No. CV 10-09198 JVS

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300

SAN FRANCISCO, CALIFORNIA 94111

Shapiro Dec., Ex. A. Sensing that a desire to file an untimely motion – and not

Mr. Shapiro’s purported scheduling conflicts – might be the main reason behind

LSW’s request, Plaintiffs responded that they were generally amenable to moving

the hearing date, but Plaintiffs also raised their concern that LSW might “use this

continuance and [Plaintiffs’] agreement to stipulate thereto to secure additional

time to make its own motion concerning the class notice” to be heard at the same

time as Plaintiffs’ motion, which would be too late if noticed for the current April

8 hearing date. Freiberg Dec. ¶3, Ex. B; Shapiro Dec., Ex. A. Plaintiffs further

noted that any such motion concerning the appointment of a special master would

be untimely pursuant to the Fourth Amended Pretrial Scheduling Order because it

necessarily would “concern[] the class notice” and was not filed within ten days of

the Ninth Circuit’s denial of LSW’s Rule 23(f) petition. Id.

In its response, LSW attempted to gloss over Plaintiffs’ concern, falsely

suggesting that Plaintiffs had “agreed” that LSW’s motion would be filed “on

Monday [March 18]” (and wrongly referring to “Monday’s deadline” and a

“March 25 deadline”), while simultaneously confessing that LSW planned to file a

motion “for appointment of a special master” to be noticed “for the same hearing

date” as Plaintiffs’ motion. Freiberg Dec. ¶4, Ex. B; Shapiro Dec., Ex. A. LSW’s

response thus revealed that Plaintiffs’ suspicions were correct that LSW sought the

continuance in order to notice its motion for the same date as Plaintiffs’ motion in

the hopes of obscuring the fact that LSW’s motion concerning class notice issues

would be untimely filed. Id. That LSW waited until two days after Plaintiffs filed

their motion to request a continuance (despite having been informed eight days

earlier that Plaintiffs would notice the hearing for April 8) and omitted the fact that

it planned to bring a separate motion (the untimeliness of which LSW hopes will

be overlooked if the schedules on the two motions are aligned) further

demonstrates the improper motive behind LSW’s request.

Moreover, there is no doubt that LSW’s planned motion is untimely under

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OPP. TO LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON MOT. RE CLASS NOTICE

Case No. CV 10-09198 JVS

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300

SAN FRANCISCO, CALIFORNIA 94111

the Fourth Amended Pretrial Scheduling Order and should have been filed a week

ago. LSW’s own representations make clear that the dispute concerning the timing

for appointment of a special master necessarily “concern[s] the class notice” and is

raised by the class notices LSW proposed and the parties’ dispute concerning the

notice. See, e.g., Freiberg Dec. ¶7, Ex. D (LSW’s Proposed Notice Distributing

Questionnaire at 8 (stating, “The Court is currently deciding membership in the

sub-Class. In order to do this, the Court has appointed a so-called “Special

Master” to assist the Court in its review of materials from LSW’s policy files in

order to determine what materials, if any, potential Class Members received. In

addition, the Court has directed that the attached questionnaire be distributed to

potential Class Members to assist the Special Master in determining whether you

and other policyholders are members of the sub-Class)) (emphasis added);

Freiberg Dec. ¶6, Ex. C (“LSW believes that the special master process must begin

immediately – in concert with the ‘response-required class notice’”) (emphasis

added). This is precisely why Plaintiffs raised the special master issue in their

opening class notice motion papers, since LSW’s proposed class notices made

clear its position that the special master process should go hand-in-hand with and,

thus, concerns class notice. If LSW wanted to separately move for the

appointment of a special master in connection with class notice, the time to do so

was Monday, March 11. It cannot now seek a continuance of Plaintiffs’ motion in

order to make its motion appear less untimely.

Nor has LSW advanced any reason why its motion was not or could not

have been timely filed on March 11. LSW’s March 14 email suggests that it was

always LSW’s intention to “notice [its motion] for the same hearing date” as

Plaintiffs’ motion (see Freiberg Dec., Ex. B), but if that were the case, LSW’s

motion would have had to be filed on March 11 in order to be timely for an April 8

hearing date. Moreover, as LSW’s March 8 letter confirms, LSW plainly has been

aware of its position concerning the appointment of a special master “in concert

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OPP. TO LSW’S EX PARTE APPLICATION TO RESCHEDULE HEARING ON MOT. RE CLASS NOTICE

Case No. CV 10-09198 JVS

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300

SAN FRANCISCO, CALIFORNIA 94111

with the ‘response-required class notice’” for weeks, if not months. See Freiberg

Dec., Ex. C (Mr. Shapiro stating that he has “described LSW’s position to

[Plaintiffs] previously, so [he] will not reiterate it at length”); id., Ex. D (LSW’s

proposed class notice, sent to Plaintiffs on February 22, expressly referencing the

appointment of a special master in connection with class notice). Thus, there is no

reason why LSW could not have filed its motion on March 11 and secured the

same hearing date for that motion as for Plaintiffs’ motion concerning class notice

issues. Its attempt to do so now, under the guise of vague and unexplained

scheduling conflicts, is improper and should be rejected.

III. CONCLUSION

Because LSW failed to provide any justification for the extraordinary relief

of an ex parte motion, and because there is no good cause for LSW’s proposed

motion to reschedule the hearing on Plaintiffs’ Motion for Approval of Class

Notice, LSW’s ex parte application should be denied.

DATED: March 18, 2013 KASOWITZ BENSON TORRES & FRIEDMAN LLP

By: /s/ Charles N. Freiberg

Charles N. Freiberg

Attorneys For Plaintiffs JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated

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