Preview
1 ROBERT L. ESENSTEN (Bar No. 65728)
resensten@esenstenlaw.com
2 JORDAN S. ESENSTEN (Bar No. 264645) ELECTRONICALLY
jesensten@esenstenlaw.com
3 ESENSTEN LAW F I L E D
Superior Court of California,
12100 Wilshire Boulevard, Suite 1660 County of San Francisco
4 Los Angeles, California 90025
Telephone: (310) 273-3090 07/25/2019
Clerk of the Court
5 Facsimile: (310) 207-5969 BY: SANDRA SCHIRO
Deputy Clerk
6 LOYR, APC
YOUNG W. RYU (SBN: 266372)
7 young.ryu@loywr.com
SARAH K. STERLING (SBN: 318224)
8 sarah.sterling@loywr.com
3130 Wilshire Blvd. Suite 402
9 Los Angeles, California 90010
Telephone: (888) 365 – 8686
10 Facsimile: (800) 576 – 1170
11
Attorneys for Plaintiff YOUMEE KIM and all others
12 similarly situated
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12100 Wilshire Blvd.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
15
16
SEJONG IM, an individual, and YOUMEE CASE NO. CGC-17-561775
17 KIM, an individual, on behalf of themselves
and all others similarly situated, CLASS ACTION
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Plaintiffs, REPLY IN SUPPORT OF PLAINTIFF
19 YOUMEE KIM’S MOTION TO COMPEL
FURTHER RESPONSES TO REQUESTS
20 FOR PRODUCTION OF DOCUMENTS
vs. AND MOTION TO COMPEL FURTHER
21 RESPONSES TO SPECIAL
INTERROGATORIES
22
EBATES INC., a corporation; and DOES 1-
23 100, Hearing Date: August 1, 2019
Time: 2:30 pm
24 Defendants. Dept.: 613
Judge: Honorable Teri L. Jackson
25
Complaint Filed: October 10, 2017
26 Trial Date: TBD
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CGC-17-561775
Reply in Support of Plaintiff’s Motions to Compel
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION .................................................................................................... 1
4 II. THE MOTION TO COMPEL SHOULD BE GRANTED ................................... 2
5 A. EBATES’ OPPOSITION IS BASED LARGELY UPON A FALSE
NARRATIVE ..................................................................................................... 2
6
B. EBATES FAILS TO JUSTIFY ITS OBJECTION TO MERCHANT
7 DISCOVERY ..................................................................................................... 4
8 C. EBATES MUST PRODUCE A CLASS LIST ....................................................... 6
9 D. EBATES CANNOT SURPRISE PLAINTIFF WITH ITS CLASS
CERTIFICATION DEFENSES ............................................................................ 8
10
III. EBATES FAILS TO PROVIDE “SUBSTANTIAL JUSTIFICATION”
11 FOR ITS OBJECTIONS AND OPPOSITION, REQUIRING
SANCTIONS ............................................................................................................. 9
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IV. CONCLUSION ....................................................................................................... 10
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Reply in Support of Plaintiff’s Motions to Compel
1 TABLE OF AUTHORITIES
2
Cases
3
Page(s)
4
5 CashCall, Inc. v. Superior Court,
159 Cal. App. 4th 273 (2008) ................................................................................. 6, 7
6
Colonial Life & Accident Ins. Co. v. Superior Court,
7 31 Cal. 3d 785 (1982) ................................................................................................. 6
8 Granfield v. NVIDIA Corp.,
2012 WL 2847575 (N.D. Cal. July 11, 2012) ............................................................ 4
9
Kagan v. Gibraltar Sav. & Loan Assn.,
10 35 Cal. 3d 582 (1984) ................................................................................................. 7
11 L.A. Taxi Coop., Inc. v. Uber Techs., Inc.,
114 F. Supp. 3d 852 (N.D. Cal. 2015) ........................................................................ 5
12
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Leonhart v. Nature's Path Foods, Inc.,
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13 2014 WL 1338161 (N.D. Cal. Mar. 31, 2014) ........................................................... 4
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14 McNeil v. Higgins,
86 Cal. App. 2d 723 (1948) ........................................................................................ 8
15
Medrazo v. Honda of N. Hollywood,
16 166 Cal. App. 4th 89 (2008) ....................................................................................... 5
17 Michel v. United States,
2017 WL 4922831 (S.D. Cal. Oct. 31, 2017) ............................................................. 4
18
W. Pico Furniture Co. of Los Angeles v. Superior Court In & For Los Angeles Cty.,
19 56 Cal. 2d 407 (1961) ................................................................................................. 6
20 Williams v. Superior Court,
3 Cal. 5th 531 (2017) .................................................................................................. 5
21
22 Statutes
23 Civ. Proc. Code § 2017.010 ................................................................................................... 9
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Reply in Support of Plaintiff’s Motions to Compel
1 I. INTRODUCTION
2 The Opposition filed by Defendant Ebates, Inc. (“Ebates”) to Plaintiff Youmee Kim’s
3 Motions to Compel presents two overarching themes. First, is distraction. In a transparent effort to
4 detract from the pertinent discovery issues that are the subject of this Motion, Ebates chooses to
5 devote a large portion of its Opposition to a false narrative. Ebates’ false narrative is replete with
6 false, inaccurate, and misleading statements regarding supposed statements made by the Court,
7 including supposed statements during hearings that never took place, and supposed statements by
8 Plaintiff’s counsel during meet and confer sessions that never took place. The false narrative is
9 intended to portray the illusion that the Court has already rejected Plaintiff’s arguments and that
10 Plaintiff’s numerous offers of compromise seeking to satisfy Ebates’ many demands and resolve the
11 discovery disputes subject to this Motion without Court-intervention, all of which Ebates rebuked
12 without rhyme or reason, were somehow attempts to “change” this action. When focusing upon the
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13 actual issues that underlie the discovery disputes in these Motions, it is clear that there can be no
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14 “dispute” at all and that Ebates’ refusal to produce the discovery subject to this Motion is entirely
15 unjustifiable.
16 The second overarching theme of Ebates’ Opposition is Ebates’ inability to carry its burden
17 of proving that the requested discovery is improper under the applicable discovery standards.
18 Merchant Discovery: Ebates’ only basis for refusing to produce merchant discovery concerning the
19 SAC Merchants is a merits-based argument as to standing. None of the cases Ebates cites pertains to
20 discovery; all of which are merits-based motions. But, Ebates fails to proffer any authority for the
21 necessary proposition that underlies its objection: That Plaintiff’s entitlement to precertification
22 depends on the merits of her individual claim or entitlement to class certification. And, Ebates’
23 attempts at refuting Plaintiff’s binding California authority: (a) are lackluster; and (b) does not
24 satisfy Ebates’ burden of proving that the requested discovery is improper.
25 Class List: Ebates’ argument against the production of a class list is based on another fairy tale
26 suggesting that Plaintiff Kim was “never” a member of the Class. As someone who made a purchase
27 from Groupon using Ebates’ website based on a False “Was” Representation, Plaintiff Kim clearly
28 has always been, and still is, a member of the classes defined in the original complaint and the FAC,
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Reply in Support of Plaintiff’s Motions to Compel
1 and would be a member of the more limited class in the SAC of SAC Merchants purchasers. In
2 addition to the factual premise of Ebates’ argument being nonexistence, the legal premise of Ebates’
3 argument has also been rejected, and none of Ebates’ cases support its position.
4 Class Certification Defenses: Once again, Ebates erroneously assumes that Plaintiff has the burden
5 of disproving Ebates’ “premature” objection to disclosing its class certification defenses. Indeed,
6 Ebates’ entire opposition to class certification defense is that Plaintiff has not cited a case where a
7 court ordered that class certification defenses be disclosed. But, the relevant inquiry is whether
8 Ebates has cited a case showing that class certification defenses fall outside of the permissible scope
9 of discovery. Ebates’ failure to do so is fatal to its objection.
10 Accordingly, the Court should grant the Motions to Compel in their entirety and sanction
11 Ebates for its misuses of discovery.
12 II. THE MOTION TO COMPEL SHOULD BE GRANTED
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13 A. EBATES’ OPPOSITION IS BASED LARGELY UPON A FALSE NARRATIVE
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14 While Plaintiff’s counsel typically does not file supplemental declarations in support of a
15 reply brief, and definitely does not typically do so to point out inaccurate statements by an opposing
16 counsel in a declaration, this reply warrants an exception. Ebates’ Opposition is largely based on
17 these inaccurate statements as a means of distracting the Court from the actual issues. Plaintiff will
18 only briefly address the inaccuracies and directs the Court to the Supplemental Declaration of Jordan
19 S. Esensten for further explanation, detail, and supporting exhibits, including direct quotes that the
20 parties have previously made in previous filings and in emails.
21 In its Opposition, Ebates contends that there were two hearings/calls in December 2018, one
22 of which was an “informal discovery call” and the other of which was “the December 18, 2018 case
23 management conference,” and that “during each of which the Court” stated that it was “inclined to
24 agree with Ebates’ position” as to the scope of merchant discovery. There was only one hearing/call
25 with the Court in December 2018. That CMC was not an “informal discovery call” or conference.
26 In filings with the Court, the parties jointly have acknowledged that while the parties requested that
27 the Court schedule a briefing schedule followed by an informal discovery conference for “sometime
28 in the middle of January,” the Court expressly declined to address the merits of the parties’
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1 arguments or to schedule an informal discovery conference. Instead, the Court expressed concern
2 with Ebates having to respond to discovery for “over 200 merchants” and proposed having Ebates
3 respond to discovery concerning its general written policies before determining whether broader
4 precertification merchant discovery is necessary. When Ebates responded to discovery three (3)
5 months later stating that it does not have any written policies, Plaintiff’s counsel became incredibly
6 perplexed: Why would Ebates agree to a discovery procedure that it knew would lead nowhere,
7 unless, of course, the aim was delay? Plaintiff directs the Court to the Supplemental Esensten
8 Declaration for further explanation and quotations from Ebates that directly contradict its contention.
9 (Id. ¶¶ 4-5, Exs. 13-14.)
10 In its Opposition, Ebates additionally contends that its decision to instruct “its e-discovery
11 vendor to collect, review, and prepare documents… relating to the three vendors from which the
12 named Plaintiffs made purchases” was “[b]ased on…further meet and confer discussions with
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13 Plaintiffs’ counsel regarding Ebates’ document production.” (Opp’n at 8:22-26.) This is also
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14 blatantly false. As further detailed in the Supplemental Esensten Declaration, and as thoroughly
15 demonstrated by four (4) different exhibits attached to the party’s papers: (a) Plaintiffs’ counsel and
16 Ebates’ counsel did not have any meet and confer discussions in the timeframe being referenced by
17 Ebates; and (2) during each and every meet and confer discussion that the parties have ever engaged
18 in, Plaintiff’s counsel made it clear to Ebates’ counsel that merchant discovery for only the
19 merchants from whom Plaintiff made a purchase would be unacceptable to Plaintiff. (Suppl.
20 Esensten Decl. ¶ 6, Exs. 13-15.)
21 In its Opposition, Ebates also contends that Plaintiff has sought to change merchants four
22 times. Ebates confuses, or intentionally mischaracterizes, Plaintiff’s numerous efforts to offer
23 compromises to the discovery dispute in hopes of avoiding Court-intervention as an attempt to
24 “change” merchants. Plaintiff has never “changed” merchants, much less four times. The face of
25 the original Complaint and the operative FAC clearly show that the scope of this action covers all
26 False “Was” Percentages Ebates utilized and is not limited to particular merchants. In response to
27 Ebates’ expressed concerns about producing discovery as to all merchants, Plaintiff made numerous
28 offers for various sets of specific merchants, which could be acceptable to Ebates and which would
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1 obviate the need for a motion to compel, but Ebates refused each of Plaintiff’s offers. Ebates would
2 not even agree to simply stipulate to amending the FAC to narrow the scope of this action to specific
3 merchants without any discovery commitments or obligations on the part of Ebates. For whatever
4 reason, which Plaintiff honestly cannot explain, Plaintiff’s offer to narrow this action was
5 unacceptable to Ebates. (Suppl. Esensten Decl. ¶ 7.)
6 Lastly, Ebates contends that during the May 23, 2019 hearing, the Court indicated that it did
7 “did not agree with Plaintiffs' positions” in this Motion. Much like Ebates’ description of the
8 December 14, 2018 CMC, this description is also inaccurate. The May 23, 2019 hearing was not an
9 informal discovery conference. In the Joint Letter submitted in advance of the hearing, both parties
10 expressed their understanding that the Court would not address the merits of any discovery issues
11 during the hearing. Ultimately, the Court never stated that it “did not agree with Plaintiffs'
12 positions.” On the contrary, the Court invited Plaintiff to file a motion to compel to address the
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13 issues. (Suppl. Esensten Decl. ¶ 8.)
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14 B. EBATES FAILS TO JUSTIFY ITS OBJECTION TO MERCHANT DISCOVERY
15 Ebates sole basis for opposing discovery as to the SAC Merchants is its contention that
16 Plaintiff will be unable to obtain class certification as to any merchant from whom she did not make
17 a purchase because she cannot assert reliance or seek discovery on behalf of persons who made
18 purchases from Amazon, Kohl’s, and Macy’s. (Opp’n 11:6-14:5.) Unable to locate any supporting
19 California authority, Ebates is relegated to relying upon a line of unpublished and inapposite federal
20 district court cases. Tellingly, Ebates is unable to find any authority supporting its position. Instead,
21 Ebates relies almost entirely upon unpublished federal court orders, none of which involve a
22 discovery motion; instead, each of Ebates’ cited cases, including the few state cases Ebates cites,
23 involve a merits-based motion. See, e.g., Michel v. United States, 2017 WL 4922831, at *1 (S.D.
24 Cal. Oct. 31, 2017) (motion for summary judgment and motion for partial summary judgment);
25 Leonhart v. Nature's Path Foods, Inc., 2014 WL 1338161, at *1 (N.D. Cal. Mar. 31, 2014) (motion
26 to dismiss); Arroyo v. TP-Link USA Corp., 2015 WL 5698752, at *1 (N.D. Cal. Sept. 29, 2015)
27 (motion to dismiss); Granfield v. NVIDIA Corp., 2012 WL 2847575, at *1 (N.D. Cal. July 11, 2012)
28 (motion to dismiss); L.A. Taxi Coop., Inc. v. Uber Techs., Inc., 114 F. Supp. 3d 852, 867 (N.D. Cal.
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1 2015) (motion to dismiss).
2 As such, Ebates’ objection is entirely premised upon the notion that the standard for
3 discovery and for class certification are one-and-the-same and that a class action plaintiff’s
4 entitlement to precertification discovery reaches only so far as his or her entitlement to class
5 certification. As explained in Plaintiff’s moving papers, the law is the opposite: A class action
6 plaintiff need not establish his or her entitlement to class certification as a prerequisite to his or her
7 entitlement to precertification discovery because a class action plaintiff is entitled to precertification
8 discovery for the precise purpose of determining the proper scope of class certification. (P&As at
9 7:4-9:11.) Indeed, the California Supreme Court has invariably stated that “the strength or weakness
10 of the plaintiff’s individual claim is immaterial.” Williams v. Superior Court, 3 Cal. 5th 531, 551
11 (2017).
12 Ebates’ only attempt at addressing this fatal flaw in its objection is its attempt to distinguish
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13 Williams and Medrazo v. Honda of N. Hollywood, 166 Cal. App. 4th 89 (2008). (Opp’n at 13:22-
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14 14:5.) First and foremost, even if Ebates was able to successfully distinguish these cases, it would
15 not help Ebates because Ebates carries the burden of establishing that its objection is proper, yet fails
16 to cite a single case supporting the necessary premise that underlies its objection. Without this,
17 Ebates’ objection does not have a leg to stand on and its objection must be overruled. See Williams,
18 3 Cal. 5th at 541 (explaining that the propounding party does not have burden of showing that
19 discovery sought falls within the range of discoverable information; the propounding party is
20 “entitled” to the discovery sought unless the responding party “objects and shows cause why the
21 questions are not within the purview of the code section”).
22 Even if the burden was on Plaintiff to disprove the premise underlying Ebates’ objection (it is
23 not), Plaintiff has done so. Ebates’ only basis for distinguishing Williams is its contention that
24 Williams applies only to PAGA actions. (Opp’n at 13:22-26.) Ebates proffers no supporting
25 authority for that proposition. Indeed, the language in Williams compels the opposite conclusion. In
26 espousing the discovery principles that defeat Ebates’ objection, the California Supreme Court
27 applied general discovery principles that are not unique to any cause of action. Williams, 3 Cal. 5th
28 at 549-51. In fact, Williams cited authority outside of the labor context, including citations to the
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1 CCP, Colonial Life & Accident Ins. Co. v. Superior Court, 31 Cal. 3d 785 (1982), which was a
2 putative class action based on unfair settlement practices, and W. Pico Furniture Co. of Los Angeles
3 v. Superior Court In & For Los Angeles Cty., 56 Cal. 2d 407 (1961), which involved unlawful
4 practices by a loan company. Ebates’ attempt at distinguishing Medrazo also fails because Ebates
5 fails to prove that unspecified “differences between merchants,” who may not even be any of the
6 SAC Merchants, makes it impossible to establish that there can be no class based upon the “same
7 alleged wrong.” (Opp’n at 13:27-14:2.) In fact, Ebates’ itself notes that class certification in this
8 case is a “possibility,” which is the precise reason that merchant discovery applicable to the SAC
9 Merchants is necessary. (Id. at 14:2-5.)
10 C. EBATES MUST PRODUCE A CLASS LIST
11 In opposing production of a class list of the SAC Merchants, Ebates relies heavily upon its
12 contention that Plaintiff Kim was “never” a member of the class and was a mere placeholder.
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13 Ebates’ argument fails both factually and legally. The Court has already rejected Ebates’ argument.
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14 In overruling, in part, Ebates’ Demurrer to the FAC, the Court rejected Ebates’ contention that both
15 Plaintiff Kim and former plaintiff Im do not have standing and found that both Plaintiffs do have
16 standing. (See Demurrer to FAC at 10:20-13:23; Demurrer Order 4:27-at 5:9.) Moreover, Plaintiff
17 Kim has always been a member of the class defined in the Complaint and the FAC because using
18 Ebates’ website, she made a purchase from Groupon based on a False “Was” Percentage. (FAC ¶¶
19 29a, 31.) Plaintiff Kim would thus also qualify as a member of a narrower class consisting of
20 persons who made purchases from Groupon, Amazon, Kohl’s, and Macy’s based on Ebates’ use of a
21 False “Was” Percentage.
22 Even if Plaintiff Kim never made a purchase from Groupon, it would not matter because the
23 bright-line rule proposed by Ebates has been soundly rejected by the Court of Appeal. CashCall,
24 Inc. v. Superior Court, 159 Cal. App. 4th 273, 286-91 (2008). In CashCall, the defendant proposed
25 the same bright-line rule Ebates proposed. Specifically, “CashCall contend[ed] that in class action
26 cases in which the named plaintiffs have never been members of the class (i.e., have never had
27 standing), a bright-line rule should apply to preclude those named plaintiffs from obtaining
28 precertification discovery of the identities of class members.” Id. at 285. The Court of Appeal
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1 rejected the argument. The court began by citing the general rule that “courts liberally allow
2 amendments for the purpose of permitting plaintiffs who lack or have lost standing to substitute as
3 plaintiffs the true real parties in interest.” Id. at 288 (emphasis in original). “It follows from the
4 general rule…that standing of the original named plaintiffs at the beginning of an action is not
5 necessarily a prerequisite to continuation of the action.” Id. (emphasis added). The Court of Appeal
6 reasoned that “there is no logical reason to necessarily treat a plaintiff who initially had standing
7 when the class action complaint was filed, but subsequently lost his or her standing, differently from,
8 and more favorably than, a plaintiff who never had standing when the complaint was filed.” Id. at
9 288-89. Citing the California Supreme Court, the court held that an “original plaintiff who lacks
10 standing in a class action should be allowed to file a motion for, and potentially obtain,
11 precertification discovery of the identities of actual class members (i.e., potential plaintiffs with
12 standing who may elect to serve as substitute class representative plaintiffs).” Id. at 289 (citing
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13 Kagan v. Gibraltar Sav. & Loan Assn., 35 Cal. 3d 582, 587-89 (1984)) (emphasis in original). Thus,
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14 even when the named plaintiff never had standing in the first place, the Parris balancing test dictates
15 whether or not to compel precertification discovery for the purpose of finding additional or substitute
16 named plaintiffs. Id. at 290. Ebates’ attempt to distinguish Cash Call simply because the privacy
17 claims being asserted had a “one-year statute of limitations” is unavailing. (Opp’n 16:15-17.) Cash
18 Call specifically states that it applies to the CLRA. 159 Cal. App. 4th at 289.
19 As discussed in Plaintiff’s moving papers, the Parris balancing test compels Ebates to
20 produce a class list of purchasers of the SAC Merchants. This is not altered by Ebates’ counsel’s
21 speculative and unsupported concerns about former plaintiff Im, who is being dismissed from the
22 lawsuit for unrelated reasons pursuant to the Court’s suggestion, having “improper motivations” for
23 bringing this case. As an initial matter, none of Ebates’ cases discuss “potential abuse” in the
24 context of speculative concerns about the “improper motivations” of a class representative; rather,
25 each of Ebates’ cases refers to “potential abuses” in the context where the first plaintiff was never a
26 member of the class. As explained above, that is not the case here.
27 Ebates fails to meet its burden of explaining the relevancy of Ebates’ speculative motivations
28 of a former plaintiff who will have no further involvement in this action as to class certification or
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1 any aspect of this action, much less the relevancy of Plaintiff Youmee Kim’s Motions to Compel. It
2 appears that Ebates’ only attempt to make any link to Plaintiff Kim is an allegation that Plaintiff Kim
3 was a former colleague of Mr. Im. Ebates’ incredibly attenuated “guilt-by-association” allegation is
4 nothing but another unsupported red-herring that Ebates is attempting to use to divert attention from
5 its misuses of discovery, including Ebates’ failure to respond to clearly relevant discovery topics and
6 its failure to produce a single document, even documents that Ebates agreed to produce five (5)
7 months ago, in February. See McNeil v. Higgins, 86 Cal. App. 2d 723, 725 (1948) (striking
8 defendant’s allegation of “improper motive attributable to plaintiff” as being irrelevant).
9 Accordingly, the Court should order production of a class list for the SAC Merchants.
10 D. EBATES CANNOT SURPRISE PLAINTIFF WITH ITS CLASS CERTIFICATION DEFENSES
11 Ebates objects to disclosure of its class certification defenses as being “premature” because
12 Plaintiff “has not yet filed a motion for class certification.” (Opp’n 6:13-16.) As noted in Plaintiff’s
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13 moving papers, Ebates lists its defenses to class certification as affirmative defenses in its Answer.
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14 Fundamental discovery principles dictate that Plaintiff is entitled to know the facts on which Ebates
15 based its affirmative defense when it filed the Answer. And, if Ebates truly does not have any facts
16 or information to support the affirmative defense, the affirmative defense should be stricken.
17 Yet, Ebates continues to stand by its “premature” objection on the basis that the authority
18 cited by Plaintiff in the Motion concerns general discovery principles and none specifically involve
19 disclosure of class certification defenses. (Opp’n 17:18-18:14.) Specifically, Ebates states: “In
20 short, there is no authority for the Court to compel disclosure of Ebates' defenses to the class
21 certification prerequisites.” (Id. at 18:10-11.) Ebates has it backwards. It is not Plaintiff’s
22 responsibility to prove that Ebates’ objection is unmeritorious; rather, the onus falls on Ebates to
23 prove that its objection is so meritorious that California’s “very liberal” discovery rules do not
24 permit the disclosure of class certification defenses. Since Ebates has failed to provide any such
25 authority that its objection is meritorious and carry its burden in this regard, the Court should order
26 Ebates to disclose its defenses to class certification.
27 To the extent that Ebates’ citation to the general rule that Plaintiff carries the burden of
28 proving the class certification elements on a motion for class certification somehow obviates Ebates’
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1 need to produce the information, that proposition directly conflicts with general discovery principles
2 providing that the bases for a party’s defenses are equally discoverable as a party’s claims. Civ.
3 Proc. Code § 2017.010.
4 III. EBATES FAILS TO PROVIDE “SUBSTANTIAL JUSTIFICATION” FOR ITS
5 OBJECTIONS AND OPPOSITION, REQUIRING SANCTIONS
6 As thoroughly set forth in the Esensten Declaration, the Supplemental Esensten Declaration,
7 in the moving papers, and in this Reply, Ebates cannot provide substantial justification for its
8 objections or its opposition. The facts are clear:
9 Refusals to Compromise: Ebates refused each and every offer one of Plaintiff’s numerous offers to
10 avoid a discovery dispute, including offers to narrow this action down to specific merchants, thereby
11 reducing Ebates’ exposure to liability, offers where Ebates would not have to give any concessions
12 as to the scope of discovery, and offers that satisfied each and every one of Ebates’ discovery
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13 demands.
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14 Total Unwillingness to Avoid Court-Intervention: Ebates failed to make any offers to
15 compromise or any attempt to avoid a Court-intervention for this discovery dispute and never
16 wavered from its original position.
17 Unsupported Objection To Merchant Discovery: Ebates’ objection to merchant discovery, which
18 consists of only four merchants and does not require Ebates to make any concessions as to class
19 certification, is not “substantially justified” at all. It is not even reasonable. The underlying premise
20 of Ebates’ objection—that Plaintiff must establish her entitlement to class certification as a
21 prerequisite to precertification discovery—is ludicrous, unsupported in Ebates’ opposition, and
22 contradicted by binding California Supreme Court precedent. Ebates failure to proffer any such
23 authority, coupled with its meager attempt at distinguishing Plaintiff’s cases, does not come close to
24 satisfying Ebates’ burden of definitively proving that the discovery falls outside of the scope of
25 permissible discovery. In fact, Ebates even admits that under Plaintiff’s cited cases, the same cases
26 Plaintiff has cited since this discovery dispute first arose nearly 9 months ago, creates a “possibility”
27 that class certification could be granted with respect to the SAC Merchants, yet refuses to allow
28 Plaintiff discovery to explore that.
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1 Borderline-Frivolous Objection to Class List: Ebates’ refusal to produce a class list of the SAC
2 Merchants is borderline frivolous. The cases Ebates cites in support do not reference any scenario
3 nearly similar to the scenario here of Ebates contending that it need not produce discovery to
4 Plaintiff Kim because of Ebates’ speculative concerns about the subjective motivations of a former
5 plaintiff, who is no longer part of this lawsuit. Even worse, in an attempt to then fit this case into the
6 mold of the cases Ebates cites, Ebates disingenuously claims that Plaintiff Kim was “never” a class
7 member. But, Cash Call, which Plaintiff has also continuously cited, directly refutes the legal
8 premise of Ebates’ argument.
9 Baseless Objection to Class Certification Defenses: Ebates refuses to disclose the bases for an
10 affirmative defense. While that sentence should suffice, there is more. Ebates’ refusal to do so is
11 based on an argument that Plaintiff should carry the burden of disproving Ebates’ objection, which
12 seeks to turn the discovery procedure that has existed for decades on its head.
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13 As has become commonplace for Ebates, Ebates attempts to distract the Court from its
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14 conduct and meritless objections by focusing upon misleading and inaccurate characterizations of
15 statements made by the Court and Plaintiff’s counsel. Ebates goes so far as to call Plaintiff’s
16 numerous attempts to narrow down this action, satisfy Ebates’ demands, and resolve the discovery
17 dispute without Court-intervention as attempts to “change” the lawsuit. Ebates then attempts to use
18 these so-call “changes” to create a narrative that places fault upon Plaintiff’s counsel for Ebates
19 engaging in e-discovery, even though the “changes” Ebates attempts to blame Plaintiff’s counsel for
20 did not occur within any relevant timeframe. Ultimately, Ebates cannot point to any conduct by
21 Plaintiff or by Plaintiff’s counsel that resulted in these motions and issues being unnecessarily before
22 the Court. And, to the extent that Ebates seeks sactions against Plaintiff’s counsel, Ebates must
23 prove that Plaintiff’s counsel has “advised” Plaintiff to engage in the conduct, which, of course,
24 Ebates has not and cannot prove.
25 IV. CONCLUSION
26 Based on the foregoing, the Court should grant Plaintiff’s Motions to Compel in their entirety
27 and also issue monetary sanctions against Ebates and its counsel in the amount of $24,800.00.
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10 CGC-17-561775
Reply in Support of Plaintiff’s Motions to Compel
1 DATED: July 25, 2019 Respectfully Submitted,
2 ESENSTEN LAW
JORDAN S. ESENSTEN
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By /s/ Jordan S. Esensten ________________
5 JORDAN S. ESENSTEN
Attorneys for Plaintiff YOUMEE KIM and
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ESENSTEN LAW
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11 CGC-17-561775
Reply in Support of Plaintiff’s Motions to Compel
Preview
1 ROBERT L. ESENSTEN (Bar No. 65728) resensten@esenstenlaw.com 2 JORDAN S. ESENSTEN (Bar No. 264645) ELECTRONICALLY jesensten@esenstenlaw.com 3 ESENSTEN LAW F I L E D Superior Court of California, 12100 Wilshire Boulevard, Suite 1660 County of San Francisco 4 Los Angeles, California 90025 Telephone: (310) 273-3090 07/25/2019 Clerk of the Court 5 Facsimile: (310) 207-5969 BY: SANDRA SCHIRO Deputy Clerk 6 LOYR, APC YOUNG W. RYU (SBN: 266372) 7 young.ryu@loywr.com SARAH K. STERLING (SBN: 318224) 8 sarah.sterling@loywr.com 3130 Wilshire Blvd. Suite 402 9 Los Angeles, California 90010 Telephone: (888) 365 – 8686 10 Facsimile: (800) 576 – 1170 11 Attorneys for Plaintiff YOUMEE KIM and all others 12 similarly situated Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 Suite 1660 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SAN FRANCISCO 15 16 SEJONG IM, an individual, and YOUMEE CASE NO. CGC-17-561775 17 KIM, an individual, on behalf of themselves and all others similarly situated, CLASS ACTION 18 Plaintiffs, REPLY IN SUPPORT OF PLAINTIFF 19 YOUMEE KIM’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS 20 FOR PRODUCTION OF DOCUMENTS vs. AND MOTION TO COMPEL FURTHER 21 RESPONSES TO SPECIAL INTERROGATORIES 22 EBATES INC., a corporation; and DOES 1- 23 100, Hearing Date: August 1, 2019 Time: 2:30 pm 24 Defendants. Dept.: 613 Judge: Honorable Teri L. Jackson 25 Complaint Filed: October 10, 2017 26 Trial Date: TBD 27 28 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION .................................................................................................... 1 4 II. THE MOTION TO COMPEL SHOULD BE GRANTED ................................... 2 5 A. EBATES’ OPPOSITION IS BASED LARGELY UPON A FALSE NARRATIVE ..................................................................................................... 2 6 B. EBATES FAILS TO JUSTIFY ITS OBJECTION TO MERCHANT 7 DISCOVERY ..................................................................................................... 4 8 C. EBATES MUST PRODUCE A CLASS LIST ....................................................... 6 9 D. EBATES CANNOT SURPRISE PLAINTIFF WITH ITS CLASS CERTIFICATION DEFENSES ............................................................................ 8 10 III. EBATES FAILS TO PROVIDE “SUBSTANTIAL JUSTIFICATION” 11 FOR ITS OBJECTIONS AND OPPOSITION, REQUIRING SANCTIONS ............................................................................................................. 9 12 Los Angeles, CA 90025 IV. CONCLUSION ....................................................................................................... 10 12100 Wilshire Blvd. ESENSTEN LAW 13 Suite 1660 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 TABLE OF AUTHORITIES 2 Cases 3 Page(s) 4 5 CashCall, Inc. v. Superior Court, 159 Cal. App. 4th 273 (2008) ................................................................................. 6, 7 6 Colonial Life & Accident Ins. Co. v. Superior Court, 7 31 Cal. 3d 785 (1982) ................................................................................................. 6 8 Granfield v. NVIDIA Corp., 2012 WL 2847575 (N.D. Cal. July 11, 2012) ............................................................ 4 9 Kagan v. Gibraltar Sav. & Loan Assn., 10 35 Cal. 3d 582 (1984) ................................................................................................. 7 11 L.A. Taxi Coop., Inc. v. Uber Techs., Inc., 114 F. Supp. 3d 852 (N.D. Cal. 2015) ........................................................................ 5 12 Los Angeles, CA 90025 Leonhart v. Nature's Path Foods, Inc., 12100 Wilshire Blvd. ESENSTEN LAW 13 2014 WL 1338161 (N.D. Cal. Mar. 31, 2014) ........................................................... 4 Suite 1660 14 McNeil v. Higgins, 86 Cal. App. 2d 723 (1948) ........................................................................................ 8 15 Medrazo v. Honda of N. Hollywood, 16 166 Cal. App. 4th 89 (2008) ....................................................................................... 5 17 Michel v. United States, 2017 WL 4922831 (S.D. Cal. Oct. 31, 2017) ............................................................. 4 18 W. Pico Furniture Co. of Los Angeles v. Superior Court In & For Los Angeles Cty., 19 56 Cal. 2d 407 (1961) ................................................................................................. 6 20 Williams v. Superior Court, 3 Cal. 5th 531 (2017) .................................................................................................. 5 21 22 Statutes 23 Civ. Proc. Code § 2017.010 ................................................................................................... 9 24 25 26 27 28 ii CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 I. INTRODUCTION 2 The Opposition filed by Defendant Ebates, Inc. (“Ebates”) to Plaintiff Youmee Kim’s 3 Motions to Compel presents two overarching themes. First, is distraction. In a transparent effort to 4 detract from the pertinent discovery issues that are the subject of this Motion, Ebates chooses to 5 devote a large portion of its Opposition to a false narrative. Ebates’ false narrative is replete with 6 false, inaccurate, and misleading statements regarding supposed statements made by the Court, 7 including supposed statements during hearings that never took place, and supposed statements by 8 Plaintiff’s counsel during meet and confer sessions that never took place. The false narrative is 9 intended to portray the illusion that the Court has already rejected Plaintiff’s arguments and that 10 Plaintiff’s numerous offers of compromise seeking to satisfy Ebates’ many demands and resolve the 11 discovery disputes subject to this Motion without Court-intervention, all of which Ebates rebuked 12 without rhyme or reason, were somehow attempts to “change” this action. When focusing upon the Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 actual issues that underlie the discovery disputes in these Motions, it is clear that there can be no Suite 1660 14 “dispute” at all and that Ebates’ refusal to produce the discovery subject to this Motion is entirely 15 unjustifiable. 16 The second overarching theme of Ebates’ Opposition is Ebates’ inability to carry its burden 17 of proving that the requested discovery is improper under the applicable discovery standards. 18 Merchant Discovery: Ebates’ only basis for refusing to produce merchant discovery concerning the 19 SAC Merchants is a merits-based argument as to standing. None of the cases Ebates cites pertains to 20 discovery; all of which are merits-based motions. But, Ebates fails to proffer any authority for the 21 necessary proposition that underlies its objection: That Plaintiff’s entitlement to precertification 22 depends on the merits of her individual claim or entitlement to class certification. And, Ebates’ 23 attempts at refuting Plaintiff’s binding California authority: (a) are lackluster; and (b) does not 24 satisfy Ebates’ burden of proving that the requested discovery is improper. 25 Class List: Ebates’ argument against the production of a class list is based on another fairy tale 26 suggesting that Plaintiff Kim was “never” a member of the Class. As someone who made a purchase 27 from Groupon using Ebates’ website based on a False “Was” Representation, Plaintiff Kim clearly 28 has always been, and still is, a member of the classes defined in the original complaint and the FAC, 1 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 and would be a member of the more limited class in the SAC of SAC Merchants purchasers. In 2 addition to the factual premise of Ebates’ argument being nonexistence, the legal premise of Ebates’ 3 argument has also been rejected, and none of Ebates’ cases support its position. 4 Class Certification Defenses: Once again, Ebates erroneously assumes that Plaintiff has the burden 5 of disproving Ebates’ “premature” objection to disclosing its class certification defenses. Indeed, 6 Ebates’ entire opposition to class certification defense is that Plaintiff has not cited a case where a 7 court ordered that class certification defenses be disclosed. But, the relevant inquiry is whether 8 Ebates has cited a case showing that class certification defenses fall outside of the permissible scope 9 of discovery. Ebates’ failure to do so is fatal to its objection. 10 Accordingly, the Court should grant the Motions to Compel in their entirety and sanction 11 Ebates for its misuses of discovery. 12 II. THE MOTION TO COMPEL SHOULD BE GRANTED Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 A. EBATES’ OPPOSITION IS BASED LARGELY UPON A FALSE NARRATIVE Suite 1660 14 While Plaintiff’s counsel typically does not file supplemental declarations in support of a 15 reply brief, and definitely does not typically do so to point out inaccurate statements by an opposing 16 counsel in a declaration, this reply warrants an exception. Ebates’ Opposition is largely based on 17 these inaccurate statements as a means of distracting the Court from the actual issues. Plaintiff will 18 only briefly address the inaccuracies and directs the Court to the Supplemental Declaration of Jordan 19 S. Esensten for further explanation, detail, and supporting exhibits, including direct quotes that the 20 parties have previously made in previous filings and in emails. 21 In its Opposition, Ebates contends that there were two hearings/calls in December 2018, one 22 of which was an “informal discovery call” and the other of which was “the December 18, 2018 case 23 management conference,” and that “during each of which the Court” stated that it was “inclined to 24 agree with Ebates’ position” as to the scope of merchant discovery. There was only one hearing/call 25 with the Court in December 2018. That CMC was not an “informal discovery call” or conference. 26 In filings with the Court, the parties jointly have acknowledged that while the parties requested that 27 the Court schedule a briefing schedule followed by an informal discovery conference for “sometime 28 in the middle of January,” the Court expressly declined to address the merits of the parties’ 2 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 arguments or to schedule an informal discovery conference. Instead, the Court expressed concern 2 with Ebates having to respond to discovery for “over 200 merchants” and proposed having Ebates 3 respond to discovery concerning its general written policies before determining whether broader 4 precertification merchant discovery is necessary. When Ebates responded to discovery three (3) 5 months later stating that it does not have any written policies, Plaintiff’s counsel became incredibly 6 perplexed: Why would Ebates agree to a discovery procedure that it knew would lead nowhere, 7 unless, of course, the aim was delay? Plaintiff directs the Court to the Supplemental Esensten 8 Declaration for further explanation and quotations from Ebates that directly contradict its contention. 9 (Id. ¶¶ 4-5, Exs. 13-14.) 10 In its Opposition, Ebates additionally contends that its decision to instruct “its e-discovery 11 vendor to collect, review, and prepare documents… relating to the three vendors from which the 12 named Plaintiffs made purchases” was “[b]ased on…further meet and confer discussions with Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 Plaintiffs’ counsel regarding Ebates’ document production.” (Opp’n at 8:22-26.) This is also Suite 1660 14 blatantly false. As further detailed in the Supplemental Esensten Declaration, and as thoroughly 15 demonstrated by four (4) different exhibits attached to the party’s papers: (a) Plaintiffs’ counsel and 16 Ebates’ counsel did not have any meet and confer discussions in the timeframe being referenced by 17 Ebates; and (2) during each and every meet and confer discussion that the parties have ever engaged 18 in, Plaintiff’s counsel made it clear to Ebates’ counsel that merchant discovery for only the 19 merchants from whom Plaintiff made a purchase would be unacceptable to Plaintiff. (Suppl. 20 Esensten Decl. ¶ 6, Exs. 13-15.) 21 In its Opposition, Ebates also contends that Plaintiff has sought to change merchants four 22 times. Ebates confuses, or intentionally mischaracterizes, Plaintiff’s numerous efforts to offer 23 compromises to the discovery dispute in hopes of avoiding Court-intervention as an attempt to 24 “change” merchants. Plaintiff has never “changed” merchants, much less four times. The face of 25 the original Complaint and the operative FAC clearly show that the scope of this action covers all 26 False “Was” Percentages Ebates utilized and is not limited to particular merchants. In response to 27 Ebates’ expressed concerns about producing discovery as to all merchants, Plaintiff made numerous 28 offers for various sets of specific merchants, which could be acceptable to Ebates and which would 3 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 obviate the need for a motion to compel, but Ebates refused each of Plaintiff’s offers. Ebates would 2 not even agree to simply stipulate to amending the FAC to narrow the scope of this action to specific 3 merchants without any discovery commitments or obligations on the part of Ebates. For whatever 4 reason, which Plaintiff honestly cannot explain, Plaintiff’s offer to narrow this action was 5 unacceptable to Ebates. (Suppl. Esensten Decl. ¶ 7.) 6 Lastly, Ebates contends that during the May 23, 2019 hearing, the Court indicated that it did 7 “did not agree with Plaintiffs' positions” in this Motion. Much like Ebates’ description of the 8 December 14, 2018 CMC, this description is also inaccurate. The May 23, 2019 hearing was not an 9 informal discovery conference. In the Joint Letter submitted in advance of the hearing, both parties 10 expressed their understanding that the Court would not address the merits of any discovery issues 11 during the hearing. Ultimately, the Court never stated that it “did not agree with Plaintiffs' 12 positions.” On the contrary, the Court invited Plaintiff to file a motion to compel to address the Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 issues. (Suppl. Esensten Decl. ¶ 8.) Suite 1660 14 B. EBATES FAILS TO JUSTIFY ITS OBJECTION TO MERCHANT DISCOVERY 15 Ebates sole basis for opposing discovery as to the SAC Merchants is its contention that 16 Plaintiff will be unable to obtain class certification as to any merchant from whom she did not make 17 a purchase because she cannot assert reliance or seek discovery on behalf of persons who made 18 purchases from Amazon, Kohl’s, and Macy’s. (Opp’n 11:6-14:5.) Unable to locate any supporting 19 California authority, Ebates is relegated to relying upon a line of unpublished and inapposite federal 20 district court cases. Tellingly, Ebates is unable to find any authority supporting its position. Instead, 21 Ebates relies almost entirely upon unpublished federal court orders, none of which involve a 22 discovery motion; instead, each of Ebates’ cited cases, including the few state cases Ebates cites, 23 involve a merits-based motion. See, e.g., Michel v. United States, 2017 WL 4922831, at *1 (S.D. 24 Cal. Oct. 31, 2017) (motion for summary judgment and motion for partial summary judgment); 25 Leonhart v. Nature's Path Foods, Inc., 2014 WL 1338161, at *1 (N.D. Cal. Mar. 31, 2014) (motion 26 to dismiss); Arroyo v. TP-Link USA Corp., 2015 WL 5698752, at *1 (N.D. Cal. Sept. 29, 2015) 27 (motion to dismiss); Granfield v. NVIDIA Corp., 2012 WL 2847575, at *1 (N.D. Cal. July 11, 2012) 28 (motion to dismiss); L.A. Taxi Coop., Inc. v. Uber Techs., Inc., 114 F. Supp. 3d 852, 867 (N.D. Cal. 4 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 2015) (motion to dismiss). 2 As such, Ebates’ objection is entirely premised upon the notion that the standard for 3 discovery and for class certification are one-and-the-same and that a class action plaintiff’s 4 entitlement to precertification discovery reaches only so far as his or her entitlement to class 5 certification. As explained in Plaintiff’s moving papers, the law is the opposite: A class action 6 plaintiff need not establish his or her entitlement to class certification as a prerequisite to his or her 7 entitlement to precertification discovery because a class action plaintiff is entitled to precertification 8 discovery for the precise purpose of determining the proper scope of class certification. (P&As at 9 7:4-9:11.) Indeed, the California Supreme Court has invariably stated that “the strength or weakness 10 of the plaintiff’s individual claim is immaterial.” Williams v. Superior Court, 3 Cal. 5th 531, 551 11 (2017). 12 Ebates’ only attempt at addressing this fatal flaw in its objection is its attempt to distinguish Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 Williams and Medrazo v. Honda of N. Hollywood, 166 Cal. App. 4th 89 (2008). (Opp’n at 13:22- Suite 1660 14 14:5.) First and foremost, even if Ebates was able to successfully distinguish these cases, it would 15 not help Ebates because Ebates carries the burden of establishing that its objection is proper, yet fails 16 to cite a single case supporting the necessary premise that underlies its objection. Without this, 17 Ebates’ objection does not have a leg to stand on and its objection must be overruled. See Williams, 18 3 Cal. 5th at 541 (explaining that the propounding party does not have burden of showing that 19 discovery sought falls within the range of discoverable information; the propounding party is 20 “entitled” to the discovery sought unless the responding party “objects and shows cause why the 21 questions are not within the purview of the code section”). 22 Even if the burden was on Plaintiff to disprove the premise underlying Ebates’ objection (it is 23 not), Plaintiff has done so. Ebates’ only basis for distinguishing Williams is its contention that 24 Williams applies only to PAGA actions. (Opp’n at 13:22-26.) Ebates proffers no supporting 25 authority for that proposition. Indeed, the language in Williams compels the opposite conclusion. In 26 espousing the discovery principles that defeat Ebates’ objection, the California Supreme Court 27 applied general discovery principles that are not unique to any cause of action. Williams, 3 Cal. 5th 28 at 549-51. In fact, Williams cited authority outside of the labor context, including citations to the 5 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 CCP, Colonial Life & Accident Ins. Co. v. Superior Court, 31 Cal. 3d 785 (1982), which was a 2 putative class action based on unfair settlement practices, and W. Pico Furniture Co. of Los Angeles 3 v. Superior Court In & For Los Angeles Cty., 56 Cal. 2d 407 (1961), which involved unlawful 4 practices by a loan company. Ebates’ attempt at distinguishing Medrazo also fails because Ebates 5 fails to prove that unspecified “differences between merchants,” who may not even be any of the 6 SAC Merchants, makes it impossible to establish that there can be no class based upon the “same 7 alleged wrong.” (Opp’n at 13:27-14:2.) In fact, Ebates’ itself notes that class certification in this 8 case is a “possibility,” which is the precise reason that merchant discovery applicable to the SAC 9 Merchants is necessary. (Id. at 14:2-5.) 10 C. EBATES MUST PRODUCE A CLASS LIST 11 In opposing production of a class list of the SAC Merchants, Ebates relies heavily upon its 12 contention that Plaintiff Kim was “never” a member of the class and was a mere placeholder. Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 Ebates’ argument fails both factually and legally. The Court has already rejected Ebates’ argument. Suite 1660 14 In overruling, in part, Ebates’ Demurrer to the FAC, the Court rejected Ebates’ contention that both 15 Plaintiff Kim and former plaintiff Im do not have standing and found that both Plaintiffs do have 16 standing. (See Demurrer to FAC at 10:20-13:23; Demurrer Order 4:27-at 5:9.) Moreover, Plaintiff 17 Kim has always been a member of the class defined in the Complaint and the FAC because using 18 Ebates’ website, she made a purchase from Groupon based on a False “Was” Percentage. (FAC ¶¶ 19 29a, 31.) Plaintiff Kim would thus also qualify as a member of a narrower class consisting of 20 persons who made purchases from Groupon, Amazon, Kohl’s, and Macy’s based on Ebates’ use of a 21 False “Was” Percentage. 22 Even if Plaintiff Kim never made a purchase from Groupon, it would not matter because the 23 bright-line rule proposed by Ebates has been soundly rejected by the Court of Appeal. CashCall, 24 Inc. v. Superior Court, 159 Cal. App. 4th 273, 286-91 (2008). In CashCall, the defendant proposed 25 the same bright-line rule Ebates proposed. Specifically, “CashCall contend[ed] that in class action 26 cases in which the named plaintiffs have never been members of the class (i.e., have never had 27 standing), a bright-line rule should apply to preclude those named plaintiffs from obtaining 28 precertification discovery of the identities of class members.” Id. at 285. The Court of Appeal 6 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 rejected the argument. The court began by citing the general rule that “courts liberally allow 2 amendments for the purpose of permitting plaintiffs who lack or have lost standing to substitute as 3 plaintiffs the true real parties in interest.” Id. at 288 (emphasis in original). “It follows from the 4 general rule…that standing of the original named plaintiffs at the beginning of an action is not 5 necessarily a prerequisite to continuation of the action.” Id. (emphasis added). The Court of Appeal 6 reasoned that “there is no logical reason to necessarily treat a plaintiff who initially had standing 7 when the class action complaint was filed, but subsequently lost his or her standing, differently from, 8 and more favorably than, a plaintiff who never had standing when the complaint was filed.” Id. at 9 288-89. Citing the California Supreme Court, the court held that an “original plaintiff who lacks 10 standing in a class action should be allowed to file a motion for, and potentially obtain, 11 precertification discovery of the identities of actual class members (i.e., potential plaintiffs with 12 standing who may elect to serve as substitute class representative plaintiffs).” Id. at 289 (citing Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 Kagan v. Gibraltar Sav. & Loan Assn., 35 Cal. 3d 582, 587-89 (1984)) (emphasis in original). Thus, Suite 1660 14 even when the named plaintiff never had standing in the first place, the Parris balancing test dictates 15 whether or not to compel precertification discovery for the purpose of finding additional or substitute 16 named plaintiffs. Id. at 290. Ebates’ attempt to distinguish Cash Call simply because the privacy 17 claims being asserted had a “one-year statute of limitations” is unavailing. (Opp’n 16:15-17.) Cash 18 Call specifically states that it applies to the CLRA. 159 Cal. App. 4th at 289. 19 As discussed in Plaintiff’s moving papers, the Parris balancing test compels Ebates to 20 produce a class list of purchasers of the SAC Merchants. This is not altered by Ebates’ counsel’s 21 speculative and unsupported concerns about former plaintiff Im, who is being dismissed from the 22 lawsuit for unrelated reasons pursuant to the Court’s suggestion, having “improper motivations” for 23 bringing this case. As an initial matter, none of Ebates’ cases discuss “potential abuse” in the 24 context of speculative concerns about the “improper motivations” of a class representative; rather, 25 each of Ebates’ cases refers to “potential abuses” in the context where the first plaintiff was never a 26 member of the class. As explained above, that is not the case here. 27 Ebates fails to meet its burden of explaining the relevancy of Ebates’ speculative motivations 28 of a former plaintiff who will have no further involvement in this action as to class certification or 7 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 any aspect of this action, much less the relevancy of Plaintiff Youmee Kim’s Motions to Compel. It 2 appears that Ebates’ only attempt to make any link to Plaintiff Kim is an allegation that Plaintiff Kim 3 was a former colleague of Mr. Im. Ebates’ incredibly attenuated “guilt-by-association” allegation is 4 nothing but another unsupported red-herring that Ebates is attempting to use to divert attention from 5 its misuses of discovery, including Ebates’ failure to respond to clearly relevant discovery topics and 6 its failure to produce a single document, even documents that Ebates agreed to produce five (5) 7 months ago, in February. See McNeil v. Higgins, 86 Cal. App. 2d 723, 725 (1948) (striking 8 defendant’s allegation of “improper motive attributable to plaintiff” as being irrelevant). 9 Accordingly, the Court should order production of a class list for the SAC Merchants. 10 D. EBATES CANNOT SURPRISE PLAINTIFF WITH ITS CLASS CERTIFICATION DEFENSES 11 Ebates objects to disclosure of its class certification defenses as being “premature” because 12 Plaintiff “has not yet filed a motion for class certification.” (Opp’n 6:13-16.) As noted in Plaintiff’s Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 moving papers, Ebates lists its defenses to class certification as affirmative defenses in its Answer. Suite 1660 14 Fundamental discovery principles dictate that Plaintiff is entitled to know the facts on which Ebates 15 based its affirmative defense when it filed the Answer. And, if Ebates truly does not have any facts 16 or information to support the affirmative defense, the affirmative defense should be stricken. 17 Yet, Ebates continues to stand by its “premature” objection on the basis that the authority 18 cited by Plaintiff in the Motion concerns general discovery principles and none specifically involve 19 disclosure of class certification defenses. (Opp’n 17:18-18:14.) Specifically, Ebates states: “In 20 short, there is no authority for the Court to compel disclosure of Ebates' defenses to the class 21 certification prerequisites.” (Id. at 18:10-11.) Ebates has it backwards. It is not Plaintiff’s 22 responsibility to prove that Ebates’ objection is unmeritorious; rather, the onus falls on Ebates to 23 prove that its objection is so meritorious that California’s “very liberal” discovery rules do not 24 permit the disclosure of class certification defenses. Since Ebates has failed to provide any such 25 authority that its objection is meritorious and carry its burden in this regard, the Court should order 26 Ebates to disclose its defenses to class certification. 27 To the extent that Ebates’ citation to the general rule that Plaintiff carries the burden of 28 proving the class certification elements on a motion for class certification somehow obviates Ebates’ 8 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 need to produce the information, that proposition directly conflicts with general discovery principles 2 providing that the bases for a party’s defenses are equally discoverable as a party’s claims. Civ. 3 Proc. Code § 2017.010. 4 III. EBATES FAILS TO PROVIDE “SUBSTANTIAL JUSTIFICATION” FOR ITS 5 OBJECTIONS AND OPPOSITION, REQUIRING SANCTIONS 6 As thoroughly set forth in the Esensten Declaration, the Supplemental Esensten Declaration, 7 in the moving papers, and in this Reply, Ebates cannot provide substantial justification for its 8 objections or its opposition. The facts are clear: 9 Refusals to Compromise: Ebates refused each and every offer one of Plaintiff’s numerous offers to 10 avoid a discovery dispute, including offers to narrow this action down to specific merchants, thereby 11 reducing Ebates’ exposure to liability, offers where Ebates would not have to give any concessions 12 as to the scope of discovery, and offers that satisfied each and every one of Ebates’ discovery Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 demands. Suite 1660 14 Total Unwillingness to Avoid Court-Intervention: Ebates failed to make any offers to 15 compromise or any attempt to avoid a Court-intervention for this discovery dispute and never 16 wavered from its original position. 17 Unsupported Objection To Merchant Discovery: Ebates’ objection to merchant discovery, which 18 consists of only four merchants and does not require Ebates to make any concessions as to class 19 certification, is not “substantially justified” at all. It is not even reasonable. The underlying premise 20 of Ebates’ objection—that Plaintiff must establish her entitlement to class certification as a 21 prerequisite to precertification discovery—is ludicrous, unsupported in Ebates’ opposition, and 22 contradicted by binding California Supreme Court precedent. Ebates failure to proffer any such 23 authority, coupled with its meager attempt at distinguishing Plaintiff’s cases, does not come close to 24 satisfying Ebates’ burden of definitively proving that the discovery falls outside of the scope of 25 permissible discovery. In fact, Ebates even admits that under Plaintiff’s cited cases, the same cases 26 Plaintiff has cited since this discovery dispute first arose nearly 9 months ago, creates a “possibility” 27 that class certification could be granted with respect to the SAC Merchants, yet refuses to allow 28 Plaintiff discovery to explore that. 9 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 Borderline-Frivolous Objection to Class List: Ebates’ refusal to produce a class list of the SAC 2 Merchants is borderline frivolous. The cases Ebates cites in support do not reference any scenario 3 nearly similar to the scenario here of Ebates contending that it need not produce discovery to 4 Plaintiff Kim because of Ebates’ speculative concerns about the subjective motivations of a former 5 plaintiff, who is no longer part of this lawsuit. Even worse, in an attempt to then fit this case into the 6 mold of the cases Ebates cites, Ebates disingenuously claims that Plaintiff Kim was “never” a class 7 member. But, Cash Call, which Plaintiff has also continuously cited, directly refutes the legal 8 premise of Ebates’ argument. 9 Baseless Objection to Class Certification Defenses: Ebates refuses to disclose the bases for an 10 affirmative defense. While that sentence should suffice, there is more. Ebates’ refusal to do so is 11 based on an argument that Plaintiff should carry the burden of disproving Ebates’ objection, which 12 seeks to turn the discovery procedure that has existed for decades on its head. Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 As has become commonplace for Ebates, Ebates attempts to distract the Court from its Suite 1660 14 conduct and meritless objections by focusing upon misleading and inaccurate characterizations of 15 statements made by the Court and Plaintiff’s counsel. Ebates goes so far as to call Plaintiff’s 16 numerous attempts to narrow down this action, satisfy Ebates’ demands, and resolve the discovery 17 dispute without Court-intervention as attempts to “change” the lawsuit. Ebates then attempts to use 18 these so-call “changes” to create a narrative that places fault upon Plaintiff’s counsel for Ebates 19 engaging in e-discovery, even though the “changes” Ebates attempts to blame Plaintiff’s counsel for 20 did not occur within any relevant timeframe. Ultimately, Ebates cannot point to any conduct by 21 Plaintiff or by Plaintiff’s counsel that resulted in these motions and issues being unnecessarily before 22 the Court. And, to the extent that Ebates seeks sactions against Plaintiff’s counsel, Ebates must 23 prove that Plaintiff’s counsel has “advised” Plaintiff to engage in the conduct, which, of course, 24 Ebates has not and cannot prove. 25 IV. CONCLUSION 26 Based on the foregoing, the Court should grant Plaintiff’s Motions to Compel in their entirety 27 and also issue monetary sanctions against Ebates and its counsel in the amount of $24,800.00. 28 10 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel 1 DATED: July 25, 2019 Respectfully Submitted, 2 ESENSTEN LAW JORDAN S. ESENSTEN 3 4 By /s/ Jordan S. Esensten ________________ 5 JORDAN S. ESENSTEN Attorneys for Plaintiff YOUMEE KIM and 6 all others similarly situated 7 8 9 10 11 12 Los Angeles, CA 90025 12100 Wilshire Blvd. ESENSTEN LAW 13 Suite 1660 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 CGC-17-561775 Reply in Support of Plaintiff’s Motions to Compel