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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Feb-18-2014 4:15 pm
Case Number: CGC-12-524871
Filing Date: Feb-18-2014 4:13
Filed by: BOWMAN LIU
Juke Box: 001 Image: 04380712
REPLY
SHELLEY KRAMER VS. KAUFMAN DOLOWICH VOLUCK & GONZO LLP, A
LIMITED et al
001004380712
Instructions:
Please place this sheet on top of the document to be scanned.By Fax
© °
FILE
San Francisco County Si
PIETER BOGAARDS, ESQ. ‘S00 Gounty Superior Court
103 E. Blithedale Avenue, Suite 10 :
Mill Valley, CA 94941 FEB 1 8 2o1¢
Tel: 415.381-5002 GORDON PARK:
Fax: 415.381-5009 oy ARK LI, Clerk
pieter@bogaards.com
Attorney for Plaintiff Deputy Clerk
Shelley Kramer BOWM AN Lig
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
SHELLEY KRAMER, ) Case No. CGC-12-524871
)
Plaintiff, ) REPLY MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF PLAINTIFF’S
vs. ) MOTION TO CONTINUE TRIAL DATE and EXTEND
) ALL TRIAL DEADLINES TO NEW TRIAL DATE,
KAUFMAN DOLOWICH VOLUCK) INCLUDING DISCOVERY AND MOTION
& GONZO LLP, a Limited Liability) | DEADLINES
Partnership registered with the) [California Rules of Court, Rule 3.1332]
California State Bar (No. 54084),)
KATHERINE CATLOS, anindividual,). Date: February 25, 2014
and DOES 1 - 20, inclusive,
Time: 9:30 a.m.
Defendants.
Place: 206
)
) TRIAL: April 7, 2014
)
) Hon. Presiding Judge Cynthia Ming-mei Lee
)
Plaintiff Shelley Kramer (“Plaintiff”) was a valued Senior Counsel at Defendant Kaufman,
Dolowich, Voluck & Gonzo, LLP (“Defendant) until she suffered a seizure and collapsed on June 1,
2011. She was rushed to a hospital where she was diagnosed with a brain tumor and underwent brain
surgery the next day. She was out on disability for several weeks whereupon she returned to work
from her medical leave and was subjected to disparate treatment until her termination on October 27,
2011. Although there were no performance concems or negative evaluations prior to her disability,
she was told her firing was due to unsatisfactory performance.
This wrongful termination lawsuit was filed on October 2, 2012, and plaintiff propounded
employment form interrogatories and document demands in November of 2012 to pin down
Defendants claimed reason(s) for Plaintiffs termination and all facts, documents and individuals that
REPLY MPA ISO MOTION TO CONTINUE TRIAL DATE -1-Cc °
supported Defendants reason(s) for the termination. [Declaration of Pieter Bogaards in Support of
Reply Brief ISO Plaintiff's Motion to Continue Trial Date (“Bogaards Reply Dec. ”) at paragraph 4.]
This is key initial discovery in every employment termination case. In the present case, Defendant
refused to respond claiming the attorney client privilege and attorney work product doctrine, and on
December 14, 2012 filed a motion for protective order to avoid responding to this critical discovery.
[Bogaards Reply Dec. at para. 5.]
On January 6, 2014, fourteen months and multiple court hearings later, Defendant, now
subject to Court Order, were required to produce substantive responses, and a detailed Privilege Log.
A second order was issued on January 7, 2014 for further responses to Requests for Admission and
Form Interrogatories to be produced by February 22, 2014. [Bogaards Reply Dee. at para. 6.]
Defendant then filed a revised Privilege Log on January 22, 2014. [Bogaards Reply Dec. at para. 7.]
The Privilege Logs and documents identified therein are the subject of motions for failure to comply
with Judge Robertson’s November 8, 2013 order, which motions will be heard February 25 and March
10, 2014. [Bogaards Reply Dec. at para. 8.]
Most recently, on February 13, 2014, Defendant produced key internal firm emails from June
of 2011 that should have been produced over a year ago, and stated on the record during a deposition
that it will not produce a PMK/PMQ witness regarding Plaintiff's termination despite timely notice
to do so. [Bogaards Reply Dec. at para. 9.]
Defendant’s opposition to Plaintiff s trial continuance request makes little sense given that it
sought a continuance of its own last November. Arguing that Plaintiff is not entitled to a trial
continuance because Defendant’ last request was denied misses the point entirely. Defendant already
had received one trial continuance and failed to establish good cause or prejudice to Defendant given
the fact that delays in discovery were due to its continued refusal to provide the facts or documents
justifying Plaintiff's termination until ordered to do so by this Court.
Plaintiff now makes her first motion for a trial continuance and Defendant cannot credibly
dispute good cause or prejudice to Plaintiff on the present record. In fact, as additional evidence in
support of Plaintiffs request for a trial continuance at present, Defendant’s opposition papers confirm
its ongoing refusal to produce documents which purportedly justify termination of Plaintiff.
REPLY MPA ISO MOTION TO CONTINUE TRIAL DATE -2-Cc °o
Moreover, Defendant’s belabored insistence that Plaintiff should have served third party
subpoenas to firm clients is equally untenable. While Plaintiff was aware of the identity of clients she
represented while working for Defendant, she was not aware of which specific cases or which specific
documents to request until Defendant responded substantively to the discovery that was originally
propounded in November 2012. Defendants January 22, 2014 Privilege Log also confirms that many
of the documents relied upon by Defendant to justify firing Plaintiff were never transmitted to clients,
including the June 201 linternal firm emails produced by Defendant on February 13, 2014.
For the first time Plaintiff has Defendant’s specific facts and description of documents which
relate to the purported basis for her termination. Plaintiff is now preparing document specific
subpoenas that may have a chance of achieving production. Defendant was selective with what it
produced, and what it withheld, requiring Plaintiff to seek evidence to corroborate her claims and
refute Defendants from other, non-privileged, sources. These include opposing counsel, the records
of the Courts where various matters were filed, and witnesses. Plaintiff has also now sought the
benefit of Court guidance on Defendants’ claims of privilege, and use of equitable methods to redact
or otherwise protect privileged information while allowing Plaintiff's case to proceed.
None of the foregoing could have been undertaken until Defendant provided more than what
the Court found to be answers that were too “vague” and to provide, “Clear complete and non-evasive
answers” to allow for the foregoing analysis.
Good cause exists for Plaintiff s trial continuance request. Plaintiff has not been able to obtain
essential testimony, documents or other material evidence despite diligent efforts. [CRC
3.1332(c)(6)]. Plaintiff's continuance request also is supported by significant unanticipated change in
the status of the case caused by (1) Defendants failure to comply with Judge Robertson’s November
8, 2013 Order, (2) Defendants production of highly relevant, non-privileged internal firm emails on
February 13, 2014, despite being obligated to produce them in 2012, and (3) Defendants refusal to
present a PMK/PMQ regarding grounds for Plaintiff’s termination. [CRC 3.1332(¢\(7)].
Additional relevant matters for the Court’s consideration support Plaintiffs request for
continuance, 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
REPLY MPA ISO MOTION TO CONTINUE TRIAL DATE -3-an ao *® WN B
© 9
eventual supplemental responses. The necessary discovery steps described above cannot 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 sought or obtained any previous 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
soughta 180 day continuance as recently as November 2013; Defendant’s attorney’s recitation
of litigation costs associated with trial preparation are the same that Plaintiff's counsel, and
all other “litigators,” must bear.
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 answers to the preliminary Form Interrogatories at the beginning of the
case, 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 Plaintiff's diligence in filing for
supplemental responses in December of 2012, and being persistent and persevering in securing
supplemental responses by January 2014.
Plaintiff respectfully requests the Court to grant an order:
. Continuing the Trial Date six months, to October 13, 2014, or such later date at the
Court’s convenience;
. Any Mandatory Settlement Conference or Case Management Conference be continued
to a date consistent with the continued trial date; and
. 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.
Dated: February 18, 2014 LAW OFFICES OF PIETER BOGAARDS
oy AR
PIETER BOGAARDS, ESQ.
Attomey for Plaintiff Shelley Kramer
REPLY MPA ISO MOTION TO CONTINUE TRIAL DATE -4-PROOF OF SERVICE
Kramer v. Kaufman Dolowich Voluck, et al.
San Francisco Superior Court Case No. CGC-12-524871
i
| My business address is 50 Francisco Street, Suite 460, San Francisco, California 94133. I
4 | am employed in the County of San Francisco, where this mailing occurs. I am over the age of 18
5 || years and not a party to the within cause. On the date set forth below, I served the foregoing
|| document(s) described as:
REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PLAINTIFF’S MOTION TO MOTION TO CONTINUE
TRIAL DATE and EXTENDED ALL DEADLINES TO NEW TRIAL
DATE, INCLUDING DISCOVERY AND MOTION DEADLINES
| ix] BY MAIL I sealed said envelope with postage thereon fully prepaid, and placed it for
collection by the U.S. Postal Service on February 18, 2014, following ordinary business
practices.
[] BY OVERNIGHT COURIER On , I deposited said envelope for delivery via overnight
courier to the office of the addressee.
|[x] BY FACSIMILE On February 18, 2014, I transmitted this document to the parties
listed below at the facsimile numbers listed.
|f ] BYHAND DELIVERY On, I caused such envelope to be hand delivered to the
person(s) of the addressee(s).
| Nancy P. McCarthy
Law Offices of Nancy P. McCarthy
1000 Drakes Landing Road
Greenbrae, CA 94904
Telephone: (415) 485-1220
Facsimile: (415) 454-9633
I declare under penalty of perjury under the laws of the State of California that the
21 | foregoing is true and correct, and that this declaration was executed on February 18, 2014, at
| San Francisco, California.
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Feb-18-2014 4:15 pm Case Number: CGC-12-524871 Filing Date: Feb-18-2014 4:13 Filed by: BOWMAN LIU Juke Box: 001 Image: 04380712 REPLY SHELLEY KRAMER VS. KAUFMAN DOLOWICH VOLUCK & GONZO LLP, A LIMITED et al 001004380712 Instructions: Please place this sheet on top of the document to be scanned.By Fax © ° FILE San Francisco County Si PIETER BOGAARDS, ESQ. ‘S00 Gounty Superior Court 103 E. Blithedale Avenue, Suite 10 : Mill Valley, CA 94941 FEB 1 8 2o1¢ Tel: 415.381-5002 GORDON PARK: Fax: 415.381-5009 oy ARK LI, Clerk pieter@bogaards.com Attorney for Plaintiff Deputy Clerk Shelley Kramer BOWM AN Lig SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO SHELLEY KRAMER, ) Case No. CGC-12-524871 ) Plaintiff, ) REPLY MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF PLAINTIFF’S vs. ) MOTION TO CONTINUE TRIAL DATE and EXTEND ) ALL TRIAL DEADLINES TO NEW TRIAL DATE, KAUFMAN DOLOWICH VOLUCK) INCLUDING DISCOVERY AND MOTION & GONZO LLP, a Limited Liability) | DEADLINES Partnership registered with the) [California Rules of Court, Rule 3.1332] California State Bar (No. 54084),) KATHERINE CATLOS, anindividual,). Date: February 25, 2014 and DOES 1 - 20, inclusive, Time: 9:30 a.m. Defendants. Place: 206 ) ) TRIAL: April 7, 2014 ) ) Hon. Presiding Judge Cynthia Ming-mei Lee ) Plaintiff Shelley Kramer (“Plaintiff”) was a valued Senior Counsel at Defendant Kaufman, Dolowich, Voluck & Gonzo, LLP (“Defendant) until she suffered a seizure and collapsed on June 1, 2011. She was rushed to a hospital where she was diagnosed with a brain tumor and underwent brain surgery the next day. She was out on disability for several weeks whereupon she returned to work from her medical leave and was subjected to disparate treatment until her termination on October 27, 2011. Although there were no performance concems or negative evaluations prior to her disability, she was told her firing was due to unsatisfactory performance. This wrongful termination lawsuit was filed on October 2, 2012, and plaintiff propounded employment form interrogatories and document demands in November of 2012 to pin down Defendants claimed reason(s) for Plaintiffs termination and all facts, documents and individuals that REPLY MPA ISO MOTION TO CONTINUE TRIAL DATE -1-Cc ° supported Defendants reason(s) for the termination. [Declaration of Pieter Bogaards in Support of Reply Brief ISO Plaintiff's Motion to Continue Trial Date (“Bogaards Reply Dec. ”) at paragraph 4.] This is key initial discovery in every employment termination case. In the present case, Defendant refused to respond claiming the attorney client privilege and attorney work product doctrine, and on December 14, 2012 filed a motion for protective order to avoid responding to this critical discovery. [Bogaards Reply Dec. at para. 5.] On January 6, 2014, fourteen months and multiple court hearings later, Defendant, now subject to Court Order, were required to produce substantive responses, and a detailed Privilege Log. A second order was issued on January 7, 2014 for further responses to Requests for Admission and Form Interrogatories to be produced by February 22, 2014. [Bogaards Reply Dee. at para. 6.] Defendant then filed a revised Privilege Log on January 22, 2014. [Bogaards Reply Dec. at para. 7.] The Privilege Logs and documents identified therein are the subject of motions for failure to comply with Judge Robertson’s November 8, 2013 order, which motions will be heard February 25 and March 10, 2014. [Bogaards Reply Dec. at para. 8.] Most recently, on February 13, 2014, Defendant produced key internal firm emails from June of 2011 that should have been produced over a year ago, and stated on the record during a deposition that it will not produce a PMK/PMQ witness regarding Plaintiff's termination despite timely notice to do so. [Bogaards Reply Dec. at para. 9.] Defendant’s opposition to Plaintiff s trial continuance request makes little sense given that it sought a continuance of its own last November. Arguing that Plaintiff is not entitled to a trial continuance because Defendant’ last request was denied misses the point entirely. Defendant already had received one trial continuance and failed to establish good cause or prejudice to Defendant given the fact that delays in discovery were due to its continued refusal to provide the facts or documents justifying Plaintiff's termination until ordered to do so by this Court. Plaintiff now makes her first motion for a trial continuance and Defendant cannot credibly dispute good cause or prejudice to Plaintiff on the present record. In fact, as additional evidence in support of Plaintiffs request for a trial continuance at present, Defendant’s opposition papers confirm its ongoing refusal to produce documents which purportedly justify termination of Plaintiff. REPLY MPA ISO MOTION TO CONTINUE TRIAL DATE -2-Cc °o Moreover, Defendant’s belabored insistence that Plaintiff should have served third party subpoenas to firm clients is equally untenable. While Plaintiff was aware of the identity of clients she represented while working for Defendant, she was not aware of which specific cases or which specific documents to request until Defendant responded substantively to the discovery that was originally propounded in November 2012. Defendants January 22, 2014 Privilege Log also confirms that many of the documents relied upon by Defendant to justify firing Plaintiff were never transmitted to clients, including the June 201 linternal firm emails produced by Defendant on February 13, 2014. For the first time Plaintiff has Defendant’s specific facts and description of documents which relate to the purported basis for her termination. Plaintiff is now preparing document specific subpoenas that may have a chance of achieving production. Defendant was selective with what it produced, and what it withheld, requiring Plaintiff to seek evidence to corroborate her claims and refute Defendants from other, non-privileged, sources. These include opposing counsel, the records of the Courts where various matters were filed, and witnesses. Plaintiff has also now sought the benefit of Court guidance on Defendants’ claims of privilege, and use of equitable methods to redact or otherwise protect privileged information while allowing Plaintiff's case to proceed. None of the foregoing could have been undertaken until Defendant provided more than what the Court found to be answers that were too “vague” and to provide, “Clear complete and non-evasive answers” to allow for the foregoing analysis. Good cause exists for Plaintiff s trial continuance request. Plaintiff has not been able to obtain essential testimony, documents or other material evidence despite diligent efforts. [CRC 3.1332(c)(6)]. Plaintiff's continuance request also is supported by significant unanticipated change in the status of the case caused by (1) Defendants failure to comply with Judge Robertson’s November 8, 2013 Order, (2) Defendants production of highly relevant, non-privileged internal firm emails on February 13, 2014, despite being obligated to produce them in 2012, and (3) Defendants refusal to present a PMK/PMQ regarding grounds for Plaintiff’s termination. [CRC 3.1332(¢\(7)]. Additional relevant matters for the Court’s consideration support Plaintiffs request for continuance, 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 REPLY MPA ISO MOTION TO CONTINUE TRIAL DATE -3-an ao *® WN B © 9 eventual supplemental responses. The necessary discovery steps described above cannot 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 sought or obtained any previous 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 soughta 180 day continuance as recently as November 2013; Defendant’s attorney’s recitation of litigation costs associated with trial preparation are the same that Plaintiff's counsel, and all other “litigators,” must bear. 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 answers to the preliminary Form Interrogatories at the beginning of the case, 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 Plaintiff's diligence in filing for supplemental responses in December of 2012, and being persistent and persevering in securing supplemental responses by January 2014. Plaintiff respectfully requests the Court to grant an order: . Continuing the Trial Date six months, to October 13, 2014, or such later date at the Court’s convenience; . Any Mandatory Settlement Conference or Case Management Conference be continued to a date consistent with the continued trial date; and . 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. Dated: February 18, 2014 LAW OFFICES OF PIETER BOGAARDS oy AR PIETER BOGAARDS, ESQ. Attomey for Plaintiff Shelley Kramer REPLY MPA ISO MOTION TO CONTINUE TRIAL DATE -4-PROOF OF SERVICE Kramer v. Kaufman Dolowich Voluck, et al. San Francisco Superior Court Case No. CGC-12-524871 i | My business address is 50 Francisco Street, Suite 460, San Francisco, California 94133. I 4 | am employed in the County of San Francisco, where this mailing occurs. I am over the age of 18 5 || years and not a party to the within cause. On the date set forth below, I served the foregoing || document(s) described as: REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO MOTION TO CONTINUE TRIAL DATE and EXTENDED ALL DEADLINES TO NEW TRIAL DATE, INCLUDING DISCOVERY AND MOTION DEADLINES | ix] BY MAIL I sealed said envelope with postage thereon fully prepaid, and placed it for collection by the U.S. Postal Service on February 18, 2014, following ordinary business practices. [] BY OVERNIGHT COURIER On , I deposited said envelope for delivery via overnight courier to the office of the addressee. |[x] BY FACSIMILE On February 18, 2014, I transmitted this document to the parties listed below at the facsimile numbers listed. |f ] BYHAND DELIVERY On, I caused such envelope to be hand delivered to the person(s) of the addressee(s). | Nancy P. McCarthy Law Offices of Nancy P. McCarthy 1000 Drakes Landing Road Greenbrae, CA 94904 Telephone: (415) 485-1220 Facsimile: (415) 454-9633 I declare under penalty of perjury under the laws of the State of California that the 21 | foregoing is true and correct, and that this declaration was executed on February 18, 2014, at | San Francisco, California.