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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jan-24-2014 03:34 pm
Case Number: CGC-12-524871
Filing Date: Jan-24-2014 03:33 pm
Filed by: CAROL BALISTRERI
Juke Box: 001 Image: 04354198
MOTION TO CONTINUE JURY TRIAL &/OR SETTLEMENT CONF.
SHELLEY KRAMER VS. KAUFMAN DOLOWICH VOLUCK & GONZO LLP, A
LIMITED et al
001004354198
| Instructions:
Please place this sheet on top of the document to be scanned.won
an wo
PIETER BOGAARDS, ESQ.
103 E. Blithedale Avenue, Suite 10 ‘Superior Count of Califomia
Mill Valley, CA 94941 ounty of Sn Franco
Tel: 415.381-5002
Fax: 415.381-3009 JAN 2 4 2014
pieter@bogaards.com C
Attorney for Plaintiff ee bens CPE see
Shelley Kramer Y Cane
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
SHELLEY KRAMER, Case No. CGC-12-524871
Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND MOTION
CONTINUE TRIAL DATE and EXTEND ALL TRIAL
DEADLINES TO NEW TRIAL DATE, INCLUDING
DISCOVERY AND MOTION DEADLINES
KAUFMAN DOLOWICH VOLUCK) [California Rules of Court, Rule 3.1332]
& GONZO LLP, a Limited Liability)
Partnership registered with the) Date: February 25, 2014
California State Bar (No. 54084),)
KATHERINE CATLOS, an individual,) Time: 9:30 a.m.
vs.
Mrmr
and DOES 1 - 20, inclusive, )
) Place: 206
Defendants. )
) TRIAL: April 7, 2014
)
) Hon, Presiding Judge Cynthia Ming-mei Lee
)
I. INTRODUCTION
TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on February 25, 2014, at 9:30 a.m. in Dept. 206 of the
above-captioned court, Plaintiff will move the court under, inter alia, California Rules of Court, Rule
3.1332, et seq. foran Order to continue the trial date currently set for April 7, 2014, and to have
all deadlines calculated based on the initial trial date will now be calculated based on the continued
trial date, including but not limited to discovery and motion deadlines.
On January 6 and 23, 2014, fourteen months after Plaintiff propounded basic Form
Interrogatories and related Document Demands in November 2012, Defendant Kaufman, Dolowich,
Voluck & Gonzo, LLP (“Defendant), subject to Court Order, produced substantive responses, and as
NOTICE OF MOTION & MOTION TO CONTINUE TRIAL DATE -1-im
ao wn
yet unverified! Privilege Logs. For the first time Plaintiff has Defendants’ specific facts, witnesses and
documents which relate to the purported basis for her termination. Plaintiff now has the tools
necessary to undertake discovery to address these recent disclosures. Plaintiff does not seek recovery
of the full year she lost, but she does seek six months to recover from the significant prejudice caused
by Defendants’ delay and to obtain essential discovery.
Defendants’ recent responses are revelatory, and a sea change in the course of this litigation.
Prior to receiving any responses, Defendants had informally indicated only three to four files were the
basis for Plaintiffs termination’. In the hearing on November 8, 20013, Defendant’s counsel doubled
that number to “seven relevant clients” (See, 11/8/13 Transcript, 109:22-23.] In Defendants’ 2014
Privilege Log and Supplemental responses the number has doubled again to fourteen. This has
increased the number of witnesses and documents to be subpoenaed to address Defendant’s newly
expanded defenses.
The Court has also further invoked the “aggressive managerial role” ordered by the Court in
its November 8, 2013 ruling:
The Court intends to adhere closely to the holding in General Dynamics and “apply an
array of ad hoc measures from [the Court's] equitable arsenal designed to permit the
attorney plaintiff to attempt to make the necessary proof while protecting from
disclosure client confidences subject to the privilege." General Dynamics Corp. v.
Superior Court, 7 Cal.4th 1764,1191 (1994). As the Court held in General Dynamics,
trial judges can minimize the dangers to the legitimate privilege interests such cases
may present by taking an "aggressive managerial role." Id. (11/8/13 Order, 6:19-26.3)
The Court further indicated the need to determine whether the documents are in fact privileged,
or can be otherwise protected via redaction, filing under seal, application of protective orders, etc.
L
Where the response contains answer and objections, the portion containing fact-specific responses, such as
the senders, recipients, content, etc. of the allegedly privileged documents, the response must be verified. [Food
4 Less Supermarkets, Inc. v. Sup.Ct. (Fletcher) (1995) 40 CA4th 651, 657, 46 CR2d 925, 928]
2
A true and correct copy of Defendant’s Termination E-mail, dated the day of her termination, and listing
only 3 client matters, is attached to the Bogaards Decl as Exhibit “E”. All exhibits the client names have
been redacted to preserve any confidentiality or privilege that could apply pending the Court’s ruling on
these matters.
3
A true and correct copy of the Court’s November 8, 2013 Order (“1 1/8/13 Order”) is attached to the Bogaards
Declaration ISO Ex Parte Application to Continue Trial (“Bogaards Decl”) as Exhibit “C”. See, 2:6-9; 3:14-
18; 4:8-11 & 21-14 - indicating that the prior answers were “vague”, lacked sufficient “factual information”
and “clear complete and non-evasive answers” should be provided., .
NOTICE OF MOTION & MOTION TO CONTINUE TRIAL DATE -2-Furthermore, the court in Herrera held that before dismissing a case "on the ground
that defendant attorney's due process right to present a defense would be violated by
the defendant's inability to disclose a client's confidential information," a trial court
must consider at least the following four factors: (1) "the evidence at issue must be the
clients' confidential information, which the client insists on keeping confidential"; (2)
"the evidence must be highly material to defendants' defenses"; (3) "the trial court must
determine whether it could effectively use ad hoc measures from [its] equitable
arsenal, including techniques such as sealing and protective orders, limited
admissibility of evidence, order restricting the use of testimony in successive
proceedings, and, where appropriate, in camera proceedings, so as to permit the action
to proceed"; and (4) "the court should consider whether it would be fundamentally
unfair to allow the action to proceed." People ex. rel. Herrera v. Stender,212 Cal. App.
4th 614,647 (2012) (internal quotations omitted). (11/8/13 Order, 7:10-23.)
Defendants’ production of substantive responses and a Privilege Log was the first step. Now,
Plaintiff must have the opportunity to challenge the privileged designations, for which there is ample
basis. There is a great deal that must be briefed with the Court to allow for the application of the
judicial application of the four factors in Herrera, to apply the “array of ad hoc measures from ‘the
Court’s] equitable arsenal” and to allow for the exercise of an “aggressive managerial role.” Plaintiff
has now met and conferred with Defendnat on this matter and shall file a Motion to Compel both
Further Responses and compliance with the court order within the next week.
Other filings shall include a Motion to Amend the Complaint, and it is anticipated that
currently scheduled depositions will also result in Motions to Compel based upon the issue of whether
documents, and inquires, are “privileged.”
The first equitable step, is to allow for a continuance of the Trial Date to permit Plaintiff to
pursue follow-up discovery based on Defendant’s recent revelations, now improperly withheld for
over one year.
Despite the “disfavored” nature of trial continuances, each case must be considered on its own
merits. [CRC 3.1332©]. The foregoing circumstances, such as one year delay on obtaining a ruling
to secure discovery only obtained last week, indicate the presence of good cause warranting a
continuance. Without it Plaintiff will not be able to obtain essential testimony, documents or other
material evidence despite diligent efforts [CRC 3.1332(c)(6)]. This is based on the significant
unanticipated change in the status of the case as a result of which the case is cannot be ready for trial
[CRC 3.1332(c)(7)].
Matters Considered in Ruling: In ruling on a motion for trial continuance, the court will
NOTICE OF MOTION & MOTION TO CONTINUE TRIAL DATE -3-normally consider all relevant matters, including:
- Proximity of the trial date - The April 7, 2014 trial date, and March 7, 2014 discovery cut-
off, will not allow time to undertake the discovery. It took one year to secure a ruling and
eventual supplemental responses. It is not likely that the necessary discovery steps described
above can be undertaken any faster;
- Any previous continuances, extensions of time or delays of trial. There have not been any
delays beyond the protracted discovery battle, which was to Defendants benefit and Plaintiff's
prejudice. Plaintiff has not bee granted any trial continuance;
- Length of the requested continuance - Plaintiff seeks six months, less than half the time
lost;
- Prejudice the parties or witnesses may suffer if there is a continuance - Plaintiff will suffer
if there is no continuance. Defendants will not be prejudiced, and have themselves previously
sought a 180 day continuance as recently as November 2013;
- Whether the “interests of justice” are best served by a continuance, trial of the matter
or imposing conditions on the continuance - In this case, based upon the diligence of
Plaintiff in seeking discovery for the preliminary Form Interrogatories the beginning of any
discovery plan, and the time it took to get a ruling and substantive supplemental responses, it
would be in the interests of justice to even the scales and allow a trial continuance and the
related cut-off dates for discovery ; and
- “(a)ny other fact or circumstance relevant to the fair determination of the motion or
application.” [CRC 3.1332(d)] The salient facts are Plaintiffs diligence in filing for
supplemental responses in December of 2012, and being persistent and persevering in securing
supplemental responses by January 2014.
Plaintiff made a good faith effort to meet and confer regarding the foregoing issues. Every
effort was made to reach a reasonable resolution of these matters.
This motion will be based on this notice, the attached memorandum of points and authorities,
declaration of Pieter Bogaards, and on such other and further oral and documentary evidence as may
be presented at the hearing of this motion.
Dated: January 24, 2014 Be PE PIETER BOGAARDS
By:
OGAARDS, ESQ.
Attorney for Plaintiff Shelley Kramer
NOTICE OF MOTION & MOTION TO CONTINUE TRIAL DATE -4-
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jan-24-2014 03:34 pm Case Number: CGC-12-524871 Filing Date: Jan-24-2014 03:33 pm Filed by: CAROL BALISTRERI Juke Box: 001 Image: 04354198 MOTION TO CONTINUE JURY TRIAL &/OR SETTLEMENT CONF. SHELLEY KRAMER VS. KAUFMAN DOLOWICH VOLUCK & GONZO LLP, A LIMITED et al 001004354198 | Instructions: Please place this sheet on top of the document to be scanned.won an wo PIETER BOGAARDS, ESQ. 103 E. Blithedale Avenue, Suite 10 ‘Superior Count of Califomia Mill Valley, CA 94941 ounty of Sn Franco Tel: 415.381-5002 Fax: 415.381-3009 JAN 2 4 2014 pieter@bogaards.com C Attorney for Plaintiff ee bens CPE see Shelley Kramer Y Cane SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO SHELLEY KRAMER, Case No. CGC-12-524871 Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND MOTION CONTINUE TRIAL DATE and EXTEND ALL TRIAL DEADLINES TO NEW TRIAL DATE, INCLUDING DISCOVERY AND MOTION DEADLINES KAUFMAN DOLOWICH VOLUCK) [California Rules of Court, Rule 3.1332] & GONZO LLP, a Limited Liability) Partnership registered with the) Date: February 25, 2014 California State Bar (No. 54084),) KATHERINE CATLOS, an individual,) Time: 9:30 a.m. vs. Mrmr and DOES 1 - 20, inclusive, ) ) Place: 206 Defendants. ) ) TRIAL: April 7, 2014 ) ) Hon, Presiding Judge Cynthia Ming-mei Lee ) I. INTRODUCTION TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 25, 2014, at 9:30 a.m. in Dept. 206 of the above-captioned court, Plaintiff will move the court under, inter alia, California Rules of Court, Rule 3.1332, et seq. foran Order to continue the trial date currently set for April 7, 2014, and to have all deadlines calculated based on the initial trial date will now be calculated based on the continued trial date, including but not limited to discovery and motion deadlines. On January 6 and 23, 2014, fourteen months after Plaintiff propounded basic Form Interrogatories and related Document Demands in November 2012, Defendant Kaufman, Dolowich, Voluck & Gonzo, LLP (“Defendant), subject to Court Order, produced substantive responses, and as NOTICE OF MOTION & MOTION TO CONTINUE TRIAL DATE -1-im ao wn yet unverified! Privilege Logs. For the first time Plaintiff has Defendants’ specific facts, witnesses and documents which relate to the purported basis for her termination. Plaintiff now has the tools necessary to undertake discovery to address these recent disclosures. Plaintiff does not seek recovery of the full year she lost, but she does seek six months to recover from the significant prejudice caused by Defendants’ delay and to obtain essential discovery. Defendants’ recent responses are revelatory, and a sea change in the course of this litigation. Prior to receiving any responses, Defendants had informally indicated only three to four files were the basis for Plaintiffs termination’. In the hearing on November 8, 20013, Defendant’s counsel doubled that number to “seven relevant clients” (See, 11/8/13 Transcript, 109:22-23.] In Defendants’ 2014 Privilege Log and Supplemental responses the number has doubled again to fourteen. This has increased the number of witnesses and documents to be subpoenaed to address Defendant’s newly expanded defenses. The Court has also further invoked the “aggressive managerial role” ordered by the Court in its November 8, 2013 ruling: The Court intends to adhere closely to the holding in General Dynamics and “apply an array of ad hoc measures from [the Court's] equitable arsenal designed to permit the attorney plaintiff to attempt to make the necessary proof while protecting from disclosure client confidences subject to the privilege." General Dynamics Corp. v. Superior Court, 7 Cal.4th 1764,1191 (1994). As the Court held in General Dynamics, trial judges can minimize the dangers to the legitimate privilege interests such cases may present by taking an "aggressive managerial role." Id. (11/8/13 Order, 6:19-26.3) The Court further indicated the need to determine whether the documents are in fact privileged, or can be otherwise protected via redaction, filing under seal, application of protective orders, etc. L Where the response contains answer and objections, the portion containing fact-specific responses, such as the senders, recipients, content, etc. of the allegedly privileged documents, the response must be verified. [Food 4 Less Supermarkets, Inc. v. Sup.Ct. (Fletcher) (1995) 40 CA4th 651, 657, 46 CR2d 925, 928] 2 A true and correct copy of Defendant’s Termination E-mail, dated the day of her termination, and listing only 3 client matters, is attached to the Bogaards Decl as Exhibit “E”. All exhibits the client names have been redacted to preserve any confidentiality or privilege that could apply pending the Court’s ruling on these matters. 3 A true and correct copy of the Court’s November 8, 2013 Order (“1 1/8/13 Order”) is attached to the Bogaards Declaration ISO Ex Parte Application to Continue Trial (“Bogaards Decl”) as Exhibit “C”. See, 2:6-9; 3:14- 18; 4:8-11 & 21-14 - indicating that the prior answers were “vague”, lacked sufficient “factual information” and “clear complete and non-evasive answers” should be provided., . NOTICE OF MOTION & MOTION TO CONTINUE TRIAL DATE -2-Furthermore, the court in Herrera held that before dismissing a case "on the ground that defendant attorney's due process right to present a defense would be violated by the defendant's inability to disclose a client's confidential information," a trial court must consider at least the following four factors: (1) "the evidence at issue must be the clients' confidential information, which the client insists on keeping confidential"; (2) "the evidence must be highly material to defendants' defenses"; (3) "the trial court must determine whether it could effectively use ad hoc measures from [its] equitable arsenal, including techniques such as sealing and protective orders, limited admissibility of evidence, order restricting the use of testimony in successive proceedings, and, where appropriate, in camera proceedings, so as to permit the action to proceed"; and (4) "the court should consider whether it would be fundamentally unfair to allow the action to proceed." People ex. rel. Herrera v. Stender,212 Cal. App. 4th 614,647 (2012) (internal quotations omitted). (11/8/13 Order, 7:10-23.) Defendants’ production of substantive responses and a Privilege Log was the first step. Now, Plaintiff must have the opportunity to challenge the privileged designations, for which there is ample basis. There is a great deal that must be briefed with the Court to allow for the application of the judicial application of the four factors in Herrera, to apply the “array of ad hoc measures from ‘the Court’s] equitable arsenal” and to allow for the exercise of an “aggressive managerial role.” Plaintiff has now met and conferred with Defendnat on this matter and shall file a Motion to Compel both Further Responses and compliance with the court order within the next week. Other filings shall include a Motion to Amend the Complaint, and it is anticipated that currently scheduled depositions will also result in Motions to Compel based upon the issue of whether documents, and inquires, are “privileged.” The first equitable step, is to allow for a continuance of the Trial Date to permit Plaintiff to pursue follow-up discovery based on Defendant’s recent revelations, now improperly withheld for over one year. Despite the “disfavored” nature of trial continuances, each case must be considered on its own merits. [CRC 3.1332©]. The foregoing circumstances, such as one year delay on obtaining a ruling to secure discovery only obtained last week, indicate the presence of good cause warranting a continuance. Without it Plaintiff will not be able to obtain essential testimony, documents or other material evidence despite diligent efforts [CRC 3.1332(c)(6)]. This is based on the significant unanticipated change in the status of the case as a result of which the case is cannot be ready for trial [CRC 3.1332(c)(7)]. Matters Considered in Ruling: In ruling on a motion for trial continuance, the court will NOTICE OF MOTION & MOTION TO CONTINUE TRIAL DATE -3-normally consider all relevant matters, including: - Proximity of the trial date - The April 7, 2014 trial date, and March 7, 2014 discovery cut- off, will not allow time to undertake the discovery. It took one year to secure a ruling and eventual supplemental responses. It is not likely that the necessary discovery steps described above can be undertaken any faster; - Any previous continuances, extensions of time or delays of trial. There have not been any delays beyond the protracted discovery battle, which was to Defendants benefit and Plaintiff's prejudice. Plaintiff has not bee granted any trial continuance; - Length of the requested continuance - Plaintiff seeks six months, less than half the time lost; - Prejudice the parties or witnesses may suffer if there is a continuance - Plaintiff will suffer if there is no continuance. Defendants will not be prejudiced, and have themselves previously sought a 180 day continuance as recently as November 2013; - Whether the “interests of justice” are best served by a continuance, trial of the matter or imposing conditions on the continuance - In this case, based upon the diligence of Plaintiff in seeking discovery for the preliminary Form Interrogatories the beginning of any discovery plan, and the time it took to get a ruling and substantive supplemental responses, it would be in the interests of justice to even the scales and allow a trial continuance and the related cut-off dates for discovery ; and - “(a)ny other fact or circumstance relevant to the fair determination of the motion or application.” [CRC 3.1332(d)] The salient facts are Plaintiffs diligence in filing for supplemental responses in December of 2012, and being persistent and persevering in securing supplemental responses by January 2014. Plaintiff made a good faith effort to meet and confer regarding the foregoing issues. Every effort was made to reach a reasonable resolution of these matters. This motion will be based on this notice, the attached memorandum of points and authorities, declaration of Pieter Bogaards, and on such other and further oral and documentary evidence as may be presented at the hearing of this motion. Dated: January 24, 2014 Be PE PIETER BOGAARDS By: OGAARDS, ESQ. Attorney for Plaintiff Shelley Kramer NOTICE OF MOTION & MOTION TO CONTINUE TRIAL DATE -4-