Preview
1 MORGAN A. STEWART (State Bar No. 209852)
mstewart@manlystewart.com
2 SAUL E. WOLF (State Bar No. 244833)
swolf@manlystewart.com
3 CRISTINA J. NOLAN (State Bar No. 318495)
cnolan@manlystewart.com
4 MANLY STEWART FINALDI
19100 Von Karman Avenue, Suite 800
5 Irvine, California 92612
Telephone: (949) 252-9990
6 Facsimile: (949) 252-9991
7 Attorneys for Plaintiff, Jane BWN Doe
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF ALAMEDA, HAYWARD HALL OF JUSTICE
10
11 JANE BWN DOE, an individual, Case No. 22CV006012
MANLY STEWART FINALDI
12 Plaintiff, ASSIGNED FOR ALL PURPOSES TO:
JUDGE JULIA SPAIN
19100 Von Karman Avenue, Suite 800
13 v. DEPARTMENT 520
Telephone (949) 252-9990
Irvine, California 92612
14 DOE 1, a California local public entity; DOE PLAINTIFF'S NOTICE OF MOTION
2, an individual; and DOES 3 to 100, AND MOTION TO DESIGNATE
15 inclusive, PRESENT CASE AND RELATED CASES
AS “COMPLEX” PURSUANT TO
16 Defendant. CALIFORNIA RULES OF COURT, RULE
3.400 et seq.
17
[Filed Concurrently with the Declaration of
18 Cristina J. Nolan and [Proposed] Order]
19 Date: February 17, 2023
Time: 2:00 p.m.
20 Dept.: 520
Reservation No.: A-06012-003
21
Action Filed: January 25, 2022
22 Trial Date: November 3, 2023
23
24 TO THE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
25 PLEASE TAKE NOTICE that on February 17, 2023, Plaintiff JANE BWN DOE, through
26 her attorney of record herein, will appear before this Court to move the Court to Designate the
27 Present Case, and Related Cases, as “Complex” within the meaning of California Rules of Court,
28 Rule 3.402(b), which expressly authorizes a party to move the Court, through noticed motion, for
1
PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED
CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq.
1 an order that a case is “complex” under California, Rules of Court, Rule 3.400 et seq..
2 The case at bar is “complex” within the meaning of California Rules of Court, Rule 3.400,
3 given that (1) there will and have been numerous pre-trial motions filed and extensive motion
4 practice with respect to novel legal issues that arise with public school mass sex abuse cases,
5 including the implication of California State Assembly Bill 218, enacted on January 1, 2020; (2)
6 each of the related cases, implicate the testimony of hundreds of witnesses; (3) tens of thousands of
7 evidentiary documents are and will be produced; and (4) the cases implicate no less than two firms
8 representing Plaintiffs; and two firm representing different Defendants.
9 The Motion shall be based on this Notice, the attached Memorandum of Points and
10 Authorities, the Declaration of Cristina J. Nolan and documents attached thereto, all papers and
11 pleadings on file with the Court, and upon any argument, oral or otherwise, raised at the hearing of
MANLY STEWART FINALDI
12 this Motion.
19100 Von Karman Avenue, Suite 800
13 DATED: January 9, 2022 MANLY STEWART FINALDI
Telephone (949) 252-9990
Irvine, California 92612
14
15
By:
16 MORGAN A. STEWART
SAUL E. WOLF
17 CRISTINA J. NOLAN
Attorneys for Plaintiff, Jane BWN Doe
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED
CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq.
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This case involves Defendant DOE 2's pedophilic actions over a more than twenty year span
4 while a teacher within DOE 1. Those actions have spawned three present and anticipated civil
5 actions, consisting of ten plaintiffs, at present. Plaintiff requests for the Court to designate the instant
6 matter as complex pursuant to California Rules of Court 3.400(a).
7 Plaintiff's matter is related to two other matters that have been consolidated: Plaintiff Jane
8 BHJ Doe matter and Rachel Phillips matter, against Defendants DOE 1 and DOE 2 1. In or around
9 September 2022, DOE 1 filed a Motion to Consolidate and Coordinate Actions for the Limited
10 Purpose of Discovery and Pretrial Case Management Only, requesting consolidation of the three
11 aforementioned cases. Declaration of Cristina J. Nolan ("Nolan Dec.") ¶12. On October 6, 2022,
MANLY STEWART FINALDI
12 the Court, on its own motion, consolidated only Phillips v. DOE 1 and Jane BHJ Doe v. Doe 1, and
19100 Von Karman Avenue, Suite 800
13 vacated DOE 1’s pending motion as moot. Ex. Do to Nolan Dec.
Telephone (949) 252-9990
Irvine, California 92612
14 While the Court has deemed two out of the three related cases as consolidated, Plaintiff
15 believes a complex order is necessary, given the number of parties and anticipated pre-trial motions
16 and discovery. Without a complex order, there will be an unnecessary burden on the litigants, repeat
17 discovery disputes, a lengthening the case, and failure to allow potential resolutions, as well as
18 limiting the costs for these parties. Extensive Motion practice has already begun, resulting in pre-
19 trial motions across the complaints. Further, extensive discovery is necessitated by the absence of a
20 complex order, resulting in the necessity of each new case requiring a repeat of discovery and
21 depositions amongst all the claims.
22 The complex nature of these cases call for a coordinated, complex judge to address the
23 exceptional judicial management that is necessary for these claims.
24 A. FACTUAL BACKGROUND
25 Defendant DOE 2's actions with respect to minor students who came into his sphere are
26 amongst the most heinous acts that could be done to another human being, let alone children.
27
1
Jane BHJ Doe and Rachel Phillips matters name both Doe 1 and Doe 2 by their true name. However, given the instant matter
28 must name the defendants as "Does" at this time, in an abundance of caution, Plaintiff shall utilize the defendant Doe pseudonym.
1
PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED
CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq.
1 DOE 2 worked as a chemistry teacher and physical education teacher for DOE 1, teaching
2 both male and female minors at Berkeley High School for nearly 25 years. Ex. A to Declaration of
3 Cristina Nolan. During this time period, DOE 2 was confronted with multiple complaints of sexual
4 misconduct, which school administrators knew about for at the very least 15 years. Finally, in or
5 around 2021, DOE 2 voluntarily resigned following an investigation by DOE 1 into allegations DOE
6 2 engaged in inappropriate sexual conduct towards students over his years of working for DOE 1.
7 During all relevant times, DOE 2 would exhibit behavior that was indicative of grooming of
8 female students in open and obvious manners, capable of being viewed by staff and administrators
9 of DOE 1, including, but not limited to:
10 a. Placing himself directly behind female students, in order to grope the students;
11 b. Pressing his genitals against female students during class time;
MANLY STEWART FINALDI
12 c. Focusing on female students in particular;
19100 Von Karman Avenue, Suite 800
13
Telephone (949) 252-9990
d. Communicating one on one with minors;
Irvine, California 92612
14
e. Touching female students openly in the middle of class time sessions, by rubbing
15 their back;
16 f. Hugging and touching students inappropriately, in open and obvious locations on
campus. Id.
17 These acts were known by Berkeley High School administrators, such as Matt Huxley, Amy
18 Frey, Felicia Phillips and Tonia Coleman, among others.
19 And at this time, there are currently ten known victims who have come forward to pursue
20 civil action against DOE 1 and DOE 2, who were abused at different times during DOE 2's nearly
21 25 years at DOE 1. Clearly, because of the nature and breadth of his crimes, the victims of DOE 2
22 are witnesses to the sexual acts of DOE 2 in each of the cases. Thus, they will necessarily testify in
23 each other's cases. Additionally, Plaintiff believes there are numerous DOE 1 employees, as well as
24 student witnesses, who have relevant information regarding DOE 2 and DOE 1's negligent conduct.
25 ///
26 ///
27 ///
28 ///
2
PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED
CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq.
1 B. PROCEDURAL BACKGROUND
2 i. Plaintiffs have filed Three Actions, Comprising 10 Plaintiffs
3 Consolidated Cases:
4 1. 8 Plaintiffs: Rachel Phillips, et al. v. DOE 1, et al., Case No. RG21104054 (filed June
15, 2021) ("Rachel Phillips matter:);
5
For a period of time, the Rachel Phillips matter was removed to Federal Court by DOE 1in
6
or around April 22, 2022. Nolan Dec.¶7(i)(b). Subsequently, the Rachel Phillips matter was
7
remanded to this Court, following a motion for leave to amend the complaint to add seven additional
8
plaintiffs. Nolan Dec.¶7(i)(b).
9
2. 1 Plaintiff: JANE BHJ DOE v. DOE 1, et al., Case No. 21CV001771 (filed November 4,
10 2021);
11 Defendant DOE 1filed a Demurrer and Motion to Strike, which were heard on or around
MANLY STEWART FINALDI
12 June 29, 2022. Nolan Dec.¶7(ii)(a). No amended complaint was filed by Plaintiff Jane BHJ Doe.
19100 Von Karman Avenue, Suite 800
13 DOE 1answered in or around September 1, 2022. Nolan Dec.¶7(ii)(a). DOE 2 answered on February
Telephone (949) 252-9990
Irvine, California 92612
14 7, 2022. Nolan Dec. ¶7(ii)(a).
15 Related Case:
16 3. 1 Plaintiff: JANE BWN DOE v. DOE 1, et al., Case No. 22CV006012 (filed January 25,
2022)
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Defendant DOE 1filed a Demurrer and Motion to Strike, which were heard on or around
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June 17, 2022. Nolan Dec.¶7(iii)(a). Subsequently, Plaintiff Jane BWN Doe filed a First Amended
19
Complaint on July 1, 2022. Nolan Dec.¶7(iii)(a). DOE 1answered in or around July 25, 2022. Nolan
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Dec.¶7(iii)(a). DOE 2 answered in or around August 5, 2022. Nolan Dec.¶7(iii)(a).
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The cases average causes of action ranging from Negligence, Negligent Supervision,
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Negligent Hiring/Retention, Assault, Sexual Battery and Gender Violence. Nolan Dec. ¶4, Ex. A.
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ii. There Are a Total of Three Law Firms Involved in the Collective Litigation
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Plaintiffs in the above-referenced cases are represented by a total of two distinct and separate
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law firms: MANLY, STEWART & FINALDI ("MSF"); and WINER, BURRITT, & SCOTT, LLP
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("WBS"). Nolan Dec., ¶¶2-3. Collectively, MSF and WBS represent 10 of the Plaintiffs. Nolan Dec.,
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¶¶2-3. WBS represents 8 Plaintiffs and MSF represents 2 Plaintiffs. Nolan Dec., ¶¶2-3.
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PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED
CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq.
1 Defendant DOE 1 is represented by one firm: SPINELLI DONALD NOTT ("SDN"). Nolan
2 Dec., ¶6(i). Defendant DOE 2 is represented by BLEDSOE, DIESTEL, TREPPA & CRANE LLP
3 ("BDTC"). Nolan Dec., ¶6(ii).
4 II. ARGUMENT
5 A. POWER OF COURT TO DECIDE A CASE IS “COMPLEX”
6 Though a party can elect to designate their case to be filed as “complex” on the “Civil Case
7 Coversheet,”, California Rules of Court allows a party to move the court for such a designation after
8 the Complaint has initially been filed. California Rules of Court (“CRC”) 3.403(b).
9 CRC 3.403(b) states that “[w]ith or without a hearing, the court may decide on its own
10 motion, or on a noticed motion by any party, that a civil action is a complex case or that an action
11 previously declared to be a complex case is not a complex case.” CRC 3.403(b)[emphasis added].
MANLY STEWART FINALDI
12 B. FACTORS TO BE USED IN DETERMINING WHETHER A CASE IS
19100 Von Karman Avenue, Suite 800
“COMPLEX”
13
Telephone (949) 252-9990
“A ‘complex case’ is an action that requires exceptional judicial management to avoid
Irvine, California 92612
14 placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs
15 reasonable, and promote effective decision making by the court, the parties, and counsel.” CRC
16 3.400. “In deciding whether an action is a complex case under (a), the court must consider, among
17 other things, whether the action is likely to involve:
18 (1) Numerous pretrial motions raising difficult or novel legal issues that will be time-
consuming to resolve;
19
20 (2) Management of a large number of witnesses or a substantial amount of documentary
evidence;
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(3) Management of a large number of separately represented parties;
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(4) Coordination with related actions pending in one or more courts in other counties, states,
23
or countries, or in a federal court; or
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(5) Substantial postjudgment judicial supervision.
25 CRC 3.400(b).
26 ///
27 ///
28 ///
4
PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED
CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq.
1 1. There will be and continues to be significant pretrial Motions that Raise
Difficult and Novel Legal issues
2
As a consequence of the multiple filings, and the absence of a complete consolidation and/or
3
complex determination, Defendant DOE 1 has capitalized on a strategy of attacking each Complaint
4
in an attempt to drive up the amount of litigation and concurrent costs for Plaintiffs.
5
Equally, there have been multiple discovery disputes and motions, still at issue in these
6
matters. Plaintiff Jane BHJ Doe has had several discovery disputes with DOE 1, for their failure to
7
provide basic responsive discovery, including documentation related to DOE 2. Jane BHJ Doe
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propounded her first set of discovery on January 21, 2022. Nolan Decl., ¶9(i); Exs. B-C to Nolan
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Decl. DOE 1served responses on or around March 28, 2022. Nolan Decl., ¶9(ii). DOE 1refused to
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supplement its responses following multiple attempts to meet and confer by Jane BHJ Doe. Nolan
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MANLY STEWART FINALDI
Decl., ¶9. The parties held an Informal Discovery Conference (“IDC”) on June 8, 2022. At the IDC,
12
19100 Von Karman Avenue, Suite 800
the following topics were discussed: (1) whether Plaintiff was entitled to information and
13
Telephone (949) 252-9990
Irvine, California 92612
documentation pertaining to DOE 2 during his entire employment with DOE 1; (2) whether Plaintiff
14
was entitled to information and documentation pertaining to other claims of misconduct within DOE
15
1; (3) privacy issues concerning DOE 2’s personnel file; and (4) Plaintiff’s request for yearbooks.
16
Nolan Decl., ¶9(iv). During the IDC, the Court acknowledged there was relevancy to Plaintiff
17
obtaining information and documentation pertaining to DOE 2 during his entire employment within
18
DOE 1, as that is pattern and practice discovery. Id. Regarding the request for information and
19
documentation pertaining to other claims, the Court believed depending on the phrasing, the
20
Preview
1 MORGAN A. STEWART (State Bar No. 209852) mstewart@manlystewart.com 2 SAUL E. WOLF (State Bar No. 244833) swolf@manlystewart.com 3 CRISTINA J. NOLAN (State Bar No. 318495) cnolan@manlystewart.com 4 MANLY STEWART FINALDI 19100 Von Karman Avenue, Suite 800 5 Irvine, California 92612 Telephone: (949) 252-9990 6 Facsimile: (949) 252-9991 7 Attorneys for Plaintiff, Jane BWN Doe 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF ALAMEDA, HAYWARD HALL OF JUSTICE 10 11 JANE BWN DOE, an individual, Case No. 22CV006012 MANLY STEWART FINALDI 12 Plaintiff, ASSIGNED FOR ALL PURPOSES TO: JUDGE JULIA SPAIN 19100 Von Karman Avenue, Suite 800 13 v. DEPARTMENT 520 Telephone (949) 252-9990 Irvine, California 92612 14 DOE 1, a California local public entity; DOE PLAINTIFF'S NOTICE OF MOTION 2, an individual; and DOES 3 to 100, AND MOTION TO DESIGNATE 15 inclusive, PRESENT CASE AND RELATED CASES AS “COMPLEX” PURSUANT TO 16 Defendant. CALIFORNIA RULES OF COURT, RULE 3.400 et seq. 17 [Filed Concurrently with the Declaration of 18 Cristina J. Nolan and [Proposed] Order] 19 Date: February 17, 2023 Time: 2:00 p.m. 20 Dept.: 520 Reservation No.: A-06012-003 21 Action Filed: January 25, 2022 22 Trial Date: November 3, 2023 23 24 TO THE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 25 PLEASE TAKE NOTICE that on February 17, 2023, Plaintiff JANE BWN DOE, through 26 her attorney of record herein, will appear before this Court to move the Court to Designate the 27 Present Case, and Related Cases, as “Complex” within the meaning of California Rules of Court, 28 Rule 3.402(b), which expressly authorizes a party to move the Court, through noticed motion, for 1 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq. 1 an order that a case is “complex” under California, Rules of Court, Rule 3.400 et seq.. 2 The case at bar is “complex” within the meaning of California Rules of Court, Rule 3.400, 3 given that (1) there will and have been numerous pre-trial motions filed and extensive motion 4 practice with respect to novel legal issues that arise with public school mass sex abuse cases, 5 including the implication of California State Assembly Bill 218, enacted on January 1, 2020; (2) 6 each of the related cases, implicate the testimony of hundreds of witnesses; (3) tens of thousands of 7 evidentiary documents are and will be produced; and (4) the cases implicate no less than two firms 8 representing Plaintiffs; and two firm representing different Defendants. 9 The Motion shall be based on this Notice, the attached Memorandum of Points and 10 Authorities, the Declaration of Cristina J. Nolan and documents attached thereto, all papers and 11 pleadings on file with the Court, and upon any argument, oral or otherwise, raised at the hearing of MANLY STEWART FINALDI 12 this Motion. 19100 Von Karman Avenue, Suite 800 13 DATED: January 9, 2022 MANLY STEWART FINALDI Telephone (949) 252-9990 Irvine, California 92612 14 15 By: 16 MORGAN A. STEWART SAUL E. WOLF 17 CRISTINA J. NOLAN Attorneys for Plaintiff, Jane BWN Doe 18 19 20 21 22 23 24 25 26 27 28 2 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq. 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 This case involves Defendant DOE 2's pedophilic actions over a more than twenty year span 4 while a teacher within DOE 1. Those actions have spawned three present and anticipated civil 5 actions, consisting of ten plaintiffs, at present. Plaintiff requests for the Court to designate the instant 6 matter as complex pursuant to California Rules of Court 3.400(a). 7 Plaintiff's matter is related to two other matters that have been consolidated: Plaintiff Jane 8 BHJ Doe matter and Rachel Phillips matter, against Defendants DOE 1 and DOE 2 1. In or around 9 September 2022, DOE 1 filed a Motion to Consolidate and Coordinate Actions for the Limited 10 Purpose of Discovery and Pretrial Case Management Only, requesting consolidation of the three 11 aforementioned cases. Declaration of Cristina J. Nolan ("Nolan Dec.") ¶12. On October 6, 2022, MANLY STEWART FINALDI 12 the Court, on its own motion, consolidated only Phillips v. DOE 1 and Jane BHJ Doe v. Doe 1, and 19100 Von Karman Avenue, Suite 800 13 vacated DOE 1’s pending motion as moot. Ex. Do to Nolan Dec. Telephone (949) 252-9990 Irvine, California 92612 14 While the Court has deemed two out of the three related cases as consolidated, Plaintiff 15 believes a complex order is necessary, given the number of parties and anticipated pre-trial motions 16 and discovery. Without a complex order, there will be an unnecessary burden on the litigants, repeat 17 discovery disputes, a lengthening the case, and failure to allow potential resolutions, as well as 18 limiting the costs for these parties. Extensive Motion practice has already begun, resulting in pre- 19 trial motions across the complaints. Further, extensive discovery is necessitated by the absence of a 20 complex order, resulting in the necessity of each new case requiring a repeat of discovery and 21 depositions amongst all the claims. 22 The complex nature of these cases call for a coordinated, complex judge to address the 23 exceptional judicial management that is necessary for these claims. 24 A. FACTUAL BACKGROUND 25 Defendant DOE 2's actions with respect to minor students who came into his sphere are 26 amongst the most heinous acts that could be done to another human being, let alone children. 27 1 Jane BHJ Doe and Rachel Phillips matters name both Doe 1 and Doe 2 by their true name. However, given the instant matter 28 must name the defendants as "Does" at this time, in an abundance of caution, Plaintiff shall utilize the defendant Doe pseudonym. 1 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq. 1 DOE 2 worked as a chemistry teacher and physical education teacher for DOE 1, teaching 2 both male and female minors at Berkeley High School for nearly 25 years. Ex. A to Declaration of 3 Cristina Nolan. During this time period, DOE 2 was confronted with multiple complaints of sexual 4 misconduct, which school administrators knew about for at the very least 15 years. Finally, in or 5 around 2021, DOE 2 voluntarily resigned following an investigation by DOE 1 into allegations DOE 6 2 engaged in inappropriate sexual conduct towards students over his years of working for DOE 1. 7 During all relevant times, DOE 2 would exhibit behavior that was indicative of grooming of 8 female students in open and obvious manners, capable of being viewed by staff and administrators 9 of DOE 1, including, but not limited to: 10 a. Placing himself directly behind female students, in order to grope the students; 11 b. Pressing his genitals against female students during class time; MANLY STEWART FINALDI 12 c. Focusing on female students in particular; 19100 Von Karman Avenue, Suite 800 13 Telephone (949) 252-9990 d. Communicating one on one with minors; Irvine, California 92612 14 e. Touching female students openly in the middle of class time sessions, by rubbing 15 their back; 16 f. Hugging and touching students inappropriately, in open and obvious locations on campus. Id. 17 These acts were known by Berkeley High School administrators, such as Matt Huxley, Amy 18 Frey, Felicia Phillips and Tonia Coleman, among others. 19 And at this time, there are currently ten known victims who have come forward to pursue 20 civil action against DOE 1 and DOE 2, who were abused at different times during DOE 2's nearly 21 25 years at DOE 1. Clearly, because of the nature and breadth of his crimes, the victims of DOE 2 22 are witnesses to the sexual acts of DOE 2 in each of the cases. Thus, they will necessarily testify in 23 each other's cases. Additionally, Plaintiff believes there are numerous DOE 1 employees, as well as 24 student witnesses, who have relevant information regarding DOE 2 and DOE 1's negligent conduct. 25 /// 26 /// 27 /// 28 /// 2 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq. 1 B. PROCEDURAL BACKGROUND 2 i. Plaintiffs have filed Three Actions, Comprising 10 Plaintiffs 3 Consolidated Cases: 4 1. 8 Plaintiffs: Rachel Phillips, et al. v. DOE 1, et al., Case No. RG21104054 (filed June 15, 2021) ("Rachel Phillips matter:); 5 For a period of time, the Rachel Phillips matter was removed to Federal Court by DOE 1in 6 or around April 22, 2022. Nolan Dec.¶7(i)(b). Subsequently, the Rachel Phillips matter was 7 remanded to this Court, following a motion for leave to amend the complaint to add seven additional 8 plaintiffs. Nolan Dec.¶7(i)(b). 9 2. 1 Plaintiff: JANE BHJ DOE v. DOE 1, et al., Case No. 21CV001771 (filed November 4, 10 2021); 11 Defendant DOE 1filed a Demurrer and Motion to Strike, which were heard on or around MANLY STEWART FINALDI 12 June 29, 2022. Nolan Dec.¶7(ii)(a). No amended complaint was filed by Plaintiff Jane BHJ Doe. 19100 Von Karman Avenue, Suite 800 13 DOE 1answered in or around September 1, 2022. Nolan Dec.¶7(ii)(a). DOE 2 answered on February Telephone (949) 252-9990 Irvine, California 92612 14 7, 2022. Nolan Dec. ¶7(ii)(a). 15 Related Case: 16 3. 1 Plaintiff: JANE BWN DOE v. DOE 1, et al., Case No. 22CV006012 (filed January 25, 2022) 17 Defendant DOE 1filed a Demurrer and Motion to Strike, which were heard on or around 18 June 17, 2022. Nolan Dec.¶7(iii)(a). Subsequently, Plaintiff Jane BWN Doe filed a First Amended 19 Complaint on July 1, 2022. Nolan Dec.¶7(iii)(a). DOE 1answered in or around July 25, 2022. Nolan 20 Dec.¶7(iii)(a). DOE 2 answered in or around August 5, 2022. Nolan Dec.¶7(iii)(a). 21 The cases average causes of action ranging from Negligence, Negligent Supervision, 22 Negligent Hiring/Retention, Assault, Sexual Battery and Gender Violence. Nolan Dec. ¶4, Ex. A. 23 ii. There Are a Total of Three Law Firms Involved in the Collective Litigation 24 Plaintiffs in the above-referenced cases are represented by a total of two distinct and separate 25 law firms: MANLY, STEWART & FINALDI ("MSF"); and WINER, BURRITT, & SCOTT, LLP 26 ("WBS"). Nolan Dec., ¶¶2-3. Collectively, MSF and WBS represent 10 of the Plaintiffs. Nolan Dec., 27 ¶¶2-3. WBS represents 8 Plaintiffs and MSF represents 2 Plaintiffs. Nolan Dec., ¶¶2-3. 28 3 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq. 1 Defendant DOE 1 is represented by one firm: SPINELLI DONALD NOTT ("SDN"). Nolan 2 Dec., ¶6(i). Defendant DOE 2 is represented by BLEDSOE, DIESTEL, TREPPA & CRANE LLP 3 ("BDTC"). Nolan Dec., ¶6(ii). 4 II. ARGUMENT 5 A. POWER OF COURT TO DECIDE A CASE IS “COMPLEX” 6 Though a party can elect to designate their case to be filed as “complex” on the “Civil Case 7 Coversheet,”, California Rules of Court allows a party to move the court for such a designation after 8 the Complaint has initially been filed. California Rules of Court (“CRC”) 3.403(b). 9 CRC 3.403(b) states that “[w]ith or without a hearing, the court may decide on its own 10 motion, or on a noticed motion by any party, that a civil action is a complex case or that an action 11 previously declared to be a complex case is not a complex case.” CRC 3.403(b)[emphasis added]. MANLY STEWART FINALDI 12 B. FACTORS TO BE USED IN DETERMINING WHETHER A CASE IS 19100 Von Karman Avenue, Suite 800 “COMPLEX” 13 Telephone (949) 252-9990 “A ‘complex case’ is an action that requires exceptional judicial management to avoid Irvine, California 92612 14 placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs 15 reasonable, and promote effective decision making by the court, the parties, and counsel.” CRC 16 3.400. “In deciding whether an action is a complex case under (a), the court must consider, among 17 other things, whether the action is likely to involve: 18 (1) Numerous pretrial motions raising difficult or novel legal issues that will be time- consuming to resolve; 19 20 (2) Management of a large number of witnesses or a substantial amount of documentary evidence; 21 (3) Management of a large number of separately represented parties; 22 (4) Coordination with related actions pending in one or more courts in other counties, states, 23 or countries, or in a federal court; or 24 (5) Substantial postjudgment judicial supervision. 25 CRC 3.400(b). 26 /// 27 /// 28 /// 4 PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DESIGNATE PRESENT CASE AND RELATED CASES AS “COMPLEX” PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3.400 et seq. 1 1. There will be and continues to be significant pretrial Motions that Raise Difficult and Novel Legal issues 2 As a consequence of the multiple filings, and the absence of a complete consolidation and/or 3 complex determination, Defendant DOE 1 has capitalized on a strategy of attacking each Complaint 4 in an attempt to drive up the amount of litigation and concurrent costs for Plaintiffs. 5 Equally, there have been multiple discovery disputes and motions, still at issue in these 6 matters. Plaintiff Jane BHJ Doe has had several discovery disputes with DOE 1, for their failure to 7 provide basic responsive discovery, including documentation related to DOE 2. Jane BHJ Doe 8 propounded her first set of discovery on January 21, 2022. Nolan Decl., ¶9(i); Exs. B-C to Nolan 9 Decl. DOE 1served responses on or around March 28, 2022. Nolan Decl., ¶9(ii). DOE 1refused to 10 supplement its responses following multiple attempts to meet and confer by Jane BHJ Doe. Nolan 11 MANLY STEWART FINALDI Decl., ¶9. The parties held an Informal Discovery Conference (“IDC”) on June 8, 2022. At the IDC, 12 19100 Von Karman Avenue, Suite 800 the following topics were discussed: (1) whether Plaintiff was entitled to information and 13 Telephone (949) 252-9990 Irvine, California 92612 documentation pertaining to DOE 2 during his entire employment with DOE 1; (2) whether Plaintiff 14 was entitled to information and documentation pertaining to other claims of misconduct within DOE 15 1; (3) privacy issues concerning DOE 2’s personnel file; and (4) Plaintiff’s request for yearbooks. 16 Nolan Decl., ¶9(iv). During the IDC, the Court acknowledged there was relevancy to Plaintiff 17 obtaining information and documentation pertaining to DOE 2 during his entire employment within 18 DOE 1, as that is pattern and practice discovery. Id. Regarding the request for information and 19 documentation pertaining to other claims, the Court believed depending on the phrasing, the 20