Preview
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023
Exhibit 3
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023
1 CHRISTOPHER C. FROST (SBN 315932)
JOHN A. LITTLE (pro hac vice)
2 BRADEN T. MORELL (pro hac vice) ELECTRONICALLY
MAYNARD NEXSEN, P.C.
3 1901 Sixth Avenue North, Suite 1700 FILED
Birmingham, Alabama 35203 Superior Court of California,
County of San Francisco
4 Telephone: (205) 254-1000
cfrost@maynardnexsen.com 11/22/2023
Clerk of the Court
5 jlittle@maynardnexsen.com BY: JUDITH NUNEZ
bmorell@maynardnexsen.com Deputy Clerk
6
Attorneys for Defendant
7
TWIN CITY FIRE INSURANCE COMPANY
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SAN FRANCISCO
10
11
FOX PAINE & COMPANY, LLC; FOX ) Case No. CGC-17-557275
12 PAINE CAPITAL FUND II INTERNATIONAL, )
L.P.; FP INTERNATIONAL LPH, LP.; ) DEFENDANT TWIN CITY FIRE
13 FOX PAINE INTERNATIONAL GP, LTD.; AND ) INSURANCE COMPANY’S
SAUL A. FOX, ) OPPOSITION TO PLAINTIFFS’ EX
14 ) PARTE APPLICATION SEEKING
Plaintiffs, )
15 LEAVE TO TAKE DEPOSITIONS
vs. ) AFTER THE DISCOVERY
16 ) CUTOFF
TWIN CITY FIRE INSURANCE )
17 COMPANY; ST. PAUL MERCURY )
INSURANCE COMPANY; LIBERTY ) Hon. Andrew Y.S. Cheng
18 MUTUAL INSURANCE COMPANY; ) Dept.: 613
AND DOES 1-10, INCLUSIVE, )
19 Defendants. )
)
20 )
)
21
)
22
23
24
25
26
27
28
TWIN CITY’S OPPOSITION TO EX PARTE APPLICATION
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023
1 OPPOSITION TO EX PARTE APPLICATION
2 For the second time in two weeks, Plaintiffs seek an extension of the discovery deadline
3 after previously informing the Court that no such extension was necessary. Just as before, Plaintiffs
4 contend that additional depositions are warranted, and they ask the Court to preemptively permit
5 them leave to take these depositions if they later obtain an order compelling the depositions. The
6 Court rejected Plaintiffs’ prior ex parte application seeking similar relief. (November 17, 2023
7 Order). For three reasons, the Court should reject Plaintiffs’ present application.
8 First, Plaintiffs repeatedly opposed Twin City’s requests to extend the discovery deadline
9 to accommodate depositions. As non-party St. Paul Mercury Insurance Company (“St. Paul”)
10 demonstrated in opposition to Plaintiffs’ prior ex parte application, Plaintiffs have consistently and
11 significantly downplayed their intentions as it relates to the volume of discovery in this matter,
12 leading the Court to keep in place a Case Management Schedule over other parties’ requests for an
13 extension.1 Then, in the last two weeks of the discovery period, Plaintiffs unilaterally noticed more
14 than ten depositions, including on the same dates at the same times in different cities. In order to
15 meet the discovery deadline, Twin City bent over backwards to accommodate Plaintiffs’ last-minute
16 push for a deluge of discovery, and the parties were able to schedule and complete seven depositions
17 within the last few weeks of the discovery period. Yet, Plaintiffs continue to demand more. They
18 now ask the Court to grant them a unilateral and indefinite extension to accommodate non-party
19 depositions they could have taken long ago, based only on the assumption that Plaintiffs may one
20 day be able to compel the attendance of these witnesses to testify. In short, Plaintiffs insisted on
21 clinging to this discovery schedule, making inevitable the consequence they now face. The Court
22 should not go out of its way to save Plaintiffs from the schedule they demanded the Court keep.
23 Second, Plaintiffs face no risk of harm by the denial of the current application. Plaintiffs
24 cannot make the necessary “affirmative factual showing . . . of irreparable harm [or] immediate
25 danger” to support ex parte relief to permit their continued pursuit of unnecessary depositions. Rule
26
27 1
As the Court is aware, undersigned counsel also represents St. Paul. Plaintiffs’ application begins
by stating Plaintiffs seek “an Order granting leave to take St. Paul’s deposition after the discovery
28 cutoff.” (Application at 1). To the extent this assertion is not an error, the Court denied Plaintiffs’
application seeking identical relief on November 17, 2023.
-1-
TWIN CITY’S OPPOSITION TO EX PARTE APPLICATION
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023
1 of Court 3.1202(c). In an attempt to carry their burden, Plaintiffs provide nothing more than the
2 bare assertion that these witnesses may have “discoverable information bearing directly on
3 Plaintiffs’ claims.” (App. at 1). But Plaintiffs do not demonstrate that this information is not
4 obtainable from other means, or that they have not already obtained the information sought from
5 these third parties. Nor could they, as Plaintiffs previously deposed Mr. Doebele on the exact same
6 issues raised in this lawsuit as a corporate representative of Twin City. Undersigned counsel
7 offered on several occasions that Plaintiffs could use Mr. Doebele’s prior deposition testimony in
8 this matter, but Plaintiffs refused. (See Declaration of Christopher Frost). Instead, Plaintiffs chose
9 to depose another corporate representative of Twin City, and that deposition took place prior to the
10 discovery cutoff. Any further testimony by Mr. Doebele would constitute needless, duplicative
11 discovery from non-parties. Plaintiffs face no risk of irreparable harm by not being able to take Mr.
12 Doebele’s deposition.
13 Third, Plaintiffs’ unreasonable delay, not any action of Twin City, prevented the depositions
14 from taking place within the discovery period. Plaintiffs overstate their pursuit of these depositions
15 in an attempt to manufacture diligence, but the current Case Management Schedule has been in
16 place for over a year. Plaintiffs have known Mr. Doebele and Ms. Boltax’s identities and former
17 roles within Twin City since at least 2016. The same is true for Paine, whose role in this litigation
18 Plaintiffs have long known about and representatives of whom Plaintiffs previously deposed.
19 Nothing in Plaintiffs’ application explains why they waited until the second half of October, less
20 than 30 days from the discovery deadline, to notice these depositions. Plaintiffs also fail to explain
21 their sudden shift in the final two weeks of the discovery period from maintaining that the prior
22 schedule must be kept in force to contending that the schedule no longer provides sufficient time
23 for discovery.
24 Nor can Plaintiffs tie their failure to take these depositions within the discovery period to
25 any action by Twin City. Twin City did not object to the subpoenas on these witnesses’ behalf, nor
26 does Twin City have the ability to affect the availability of these witnesses on the dates unilaterally
27 chosen by Plaintiff. These witnesses are not subject to Twin City’s control. Plaintiffs baldly
28 suggest that Twin City “conspire[d]” with these witnesses to execute “eleventh-hour maneuvers”
-2-
TWIN CITY’S OPPOSITION TO EX PARTE APPLICATION
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023
1 to prevent their testimony. (App. at 1; Memorandum of Points and Authorities at 1). Neither
2 assertion is supported because neither is true. In reality, Plaintiffs knew for nearly a week that Mr.
3 Doebele and Ms. Boltax would not appear for their depositions on the scheduled dates because
4 counsel representing the witnesses contended that Plaintiffs failed to compel their attendance
5 through the process provided in their states of residence.2 Contrary to Plaintiffs’ assertion, Mr.
6 Doebele and Ms. Boltax provided Plaintiffs with ample notice of their positions that they were not
7 “properly and legally served” with a subpoena. (Memo. at 2). Further, it appears Plaintiffs were
8 aware as early as October 20, 2023 that Paine would not appear for its deposition due to scheduling
9 issues. Plaintiffs’ attempt to accuse Twin City of conspiring with these witnesses is both untrue
10 and absurd. At the very least, it provides no basis for unilaterally extending discovery for Plaintiffs
11 to take more depositions Plaintiffs waited months to seek, only after Plaintiffs repeatedly opposed
12 Twin City’s requests for an extension of the discovery period.
13 In short, Plaintiffs are asking the Court to grant them an extension of the discovery period
14 after the deadline has passed, and after Plaintiffs long contended that no extension was warranted.
15 Plaintiffs seek such relief based on nothing more than their hope that they may be able to one day
16 compel one of these non-witnesses to appear for a deposition. Plaintiffs failed to even seek an order
17 to compel these depositions until the end of the discovery period.3 A hypothetical order could take
18 weeks or even months to obtain, but trial is scheduled to begin in barely two months. Plaintiffs’
19 unreasonable failure to timely seek these depositions within the discovery period is not a basis for
20 extending the discovery period indefinitely.
21
DATED: November 22, 2023 MAYNARD NEXSEN P.C.
22
By: /s/ Christopher C. Frost
23 Christopher C. Frost (SBN 315932)
John A. Little
24 Braden T. Morell
Attorneys For DEFENDANT,
25 Twin City Fire Insurance Company
26
27 2
Undersigned counsel was copied on correspondence between counsel for Mr. Doebele and Ms.
Boltax and Plaintiffs.
28 3
At present, based on documents Plaintiffs have served on undersigned counsel, it appears Plaintiffs
have only instituted proceedings to compel Mr. Doebele’s deposition in New York.
-3-
TWIN CITY’S OPPOSITION TO EX PARTE APPLICATION
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023
1
PROOF OF SERVICE
2
STATE OF CALIFORNIA )
3 COUNTY OF SAN FRANCISCO )
4 I am employed in the County of San Francisco, State of California. I am over the age of 21
and am not a party to the within action. My business address is Maynard Nexsen LLP, Two
5 Embarcadero, Suite 1450, San Francisco, California 94111. On the date indicated below, I served
the foregoing document(s) described as:
6
DEFENDANT TWIN CITY FIRE INSURANCE COMPANY’S OPPOSITION TO
7 PLAINTIFFS’ EX PARTE APPLICATION SEEKING LEAVE TO TAKE DEPOSITIONS
AFTER THE DISCOVERY CUTOFF
8
on the interested parties in this action by placing: [ ] the original document - OR- [X] a true and
9 correct copy thereof enclosed in sealed envelopes addressed as follows:
10
Michael John Miguel
11 Jack L. Meyer
Makenna Miller
12 MCKOOL SMITH, P.C.
300 South Grand Avenue, Suite 2900
13 Los Angeles, CA 90071
mmiguel@mckoolsmith.com
14 jmeyer@McKoolSmith.com
mmiller@mckoolsmith.com
15
Attorneys for Plaintiffs
16
[X] ELECTRONICALLY BY FILE&SERVEXPRESS: I electronically served the attached
17 above documents via File&ServeXpress on the recipients designated on the Transaction
Receipt located on the File&ServeXpress website.
18
I declare that I am employed in the office of a member who has been admitted to the bar of
19 this Court at whose direction the service was made. I declare under penalty of perjury under the
laws of the State of California that the foregoing is true and correct.
20
Executed on November 22, 2023 in San Francisco, California.
21
22
23 Brian Day
24
25
26
27
28
-4-
TWIN CITY’S OPPOSITION TO EX PARTE APPLICATION
Preview
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023 Exhibit 3 FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023 1 CHRISTOPHER C. FROST (SBN 315932) JOHN A. LITTLE (pro hac vice) 2 BRADEN T. MORELL (pro hac vice) ELECTRONICALLY MAYNARD NEXSEN, P.C. 3 1901 Sixth Avenue North, Suite 1700 FILED Birmingham, Alabama 35203 Superior Court of California, County of San Francisco 4 Telephone: (205) 254-1000 cfrost@maynardnexsen.com 11/22/2023 Clerk of the Court 5 jlittle@maynardnexsen.com BY: JUDITH NUNEZ bmorell@maynardnexsen.com Deputy Clerk 6 Attorneys for Defendant 7 TWIN CITY FIRE INSURANCE COMPANY 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 11 FOX PAINE & COMPANY, LLC; FOX ) Case No. CGC-17-557275 12 PAINE CAPITAL FUND II INTERNATIONAL, ) L.P.; FP INTERNATIONAL LPH, LP.; ) DEFENDANT TWIN CITY FIRE 13 FOX PAINE INTERNATIONAL GP, LTD.; AND ) INSURANCE COMPANY’S SAUL A. FOX, ) OPPOSITION TO PLAINTIFFS’ EX 14 ) PARTE APPLICATION SEEKING Plaintiffs, ) 15 LEAVE TO TAKE DEPOSITIONS vs. ) AFTER THE DISCOVERY 16 ) CUTOFF TWIN CITY FIRE INSURANCE ) 17 COMPANY; ST. PAUL MERCURY ) INSURANCE COMPANY; LIBERTY ) Hon. Andrew Y.S. Cheng 18 MUTUAL INSURANCE COMPANY; ) Dept.: 613 AND DOES 1-10, INCLUSIVE, ) 19 Defendants. ) ) 20 ) ) 21 ) 22 23 24 25 26 27 28 TWIN CITY’S OPPOSITION TO EX PARTE APPLICATION FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023 1 OPPOSITION TO EX PARTE APPLICATION 2 For the second time in two weeks, Plaintiffs seek an extension of the discovery deadline 3 after previously informing the Court that no such extension was necessary. Just as before, Plaintiffs 4 contend that additional depositions are warranted, and they ask the Court to preemptively permit 5 them leave to take these depositions if they later obtain an order compelling the depositions. The 6 Court rejected Plaintiffs’ prior ex parte application seeking similar relief. (November 17, 2023 7 Order). For three reasons, the Court should reject Plaintiffs’ present application. 8 First, Plaintiffs repeatedly opposed Twin City’s requests to extend the discovery deadline 9 to accommodate depositions. As non-party St. Paul Mercury Insurance Company (“St. Paul”) 10 demonstrated in opposition to Plaintiffs’ prior ex parte application, Plaintiffs have consistently and 11 significantly downplayed their intentions as it relates to the volume of discovery in this matter, 12 leading the Court to keep in place a Case Management Schedule over other parties’ requests for an 13 extension.1 Then, in the last two weeks of the discovery period, Plaintiffs unilaterally noticed more 14 than ten depositions, including on the same dates at the same times in different cities. In order to 15 meet the discovery deadline, Twin City bent over backwards to accommodate Plaintiffs’ last-minute 16 push for a deluge of discovery, and the parties were able to schedule and complete seven depositions 17 within the last few weeks of the discovery period. Yet, Plaintiffs continue to demand more. They 18 now ask the Court to grant them a unilateral and indefinite extension to accommodate non-party 19 depositions they could have taken long ago, based only on the assumption that Plaintiffs may one 20 day be able to compel the attendance of these witnesses to testify. In short, Plaintiffs insisted on 21 clinging to this discovery schedule, making inevitable the consequence they now face. The Court 22 should not go out of its way to save Plaintiffs from the schedule they demanded the Court keep. 23 Second, Plaintiffs face no risk of harm by the denial of the current application. Plaintiffs 24 cannot make the necessary “affirmative factual showing . . . of irreparable harm [or] immediate 25 danger” to support ex parte relief to permit their continued pursuit of unnecessary depositions. Rule 26 27 1 As the Court is aware, undersigned counsel also represents St. Paul. Plaintiffs’ application begins by stating Plaintiffs seek “an Order granting leave to take St. Paul’s deposition after the discovery 28 cutoff.” (Application at 1). To the extent this assertion is not an error, the Court denied Plaintiffs’ application seeking identical relief on November 17, 2023. -1- TWIN CITY’S OPPOSITION TO EX PARTE APPLICATION FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023 1 of Court 3.1202(c). In an attempt to carry their burden, Plaintiffs provide nothing more than the 2 bare assertion that these witnesses may have “discoverable information bearing directly on 3 Plaintiffs’ claims.” (App. at 1). But Plaintiffs do not demonstrate that this information is not 4 obtainable from other means, or that they have not already obtained the information sought from 5 these third parties. Nor could they, as Plaintiffs previously deposed Mr. Doebele on the exact same 6 issues raised in this lawsuit as a corporate representative of Twin City. Undersigned counsel 7 offered on several occasions that Plaintiffs could use Mr. Doebele’s prior deposition testimony in 8 this matter, but Plaintiffs refused. (See Declaration of Christopher Frost). Instead, Plaintiffs chose 9 to depose another corporate representative of Twin City, and that deposition took place prior to the 10 discovery cutoff. Any further testimony by Mr. Doebele would constitute needless, duplicative 11 discovery from non-parties. Plaintiffs face no risk of irreparable harm by not being able to take Mr. 12 Doebele’s deposition. 13 Third, Plaintiffs’ unreasonable delay, not any action of Twin City, prevented the depositions 14 from taking place within the discovery period. Plaintiffs overstate their pursuit of these depositions 15 in an attempt to manufacture diligence, but the current Case Management Schedule has been in 16 place for over a year. Plaintiffs have known Mr. Doebele and Ms. Boltax’s identities and former 17 roles within Twin City since at least 2016. The same is true for Paine, whose role in this litigation 18 Plaintiffs have long known about and representatives of whom Plaintiffs previously deposed. 19 Nothing in Plaintiffs’ application explains why they waited until the second half of October, less 20 than 30 days from the discovery deadline, to notice these depositions. Plaintiffs also fail to explain 21 their sudden shift in the final two weeks of the discovery period from maintaining that the prior 22 schedule must be kept in force to contending that the schedule no longer provides sufficient time 23 for discovery. 24 Nor can Plaintiffs tie their failure to take these depositions within the discovery period to 25 any action by Twin City. Twin City did not object to the subpoenas on these witnesses’ behalf, nor 26 does Twin City have the ability to affect the availability of these witnesses on the dates unilaterally 27 chosen by Plaintiff. These witnesses are not subject to Twin City’s control. Plaintiffs baldly 28 suggest that Twin City “conspire[d]” with these witnesses to execute “eleventh-hour maneuvers” -2- TWIN CITY’S OPPOSITION TO EX PARTE APPLICATION FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023 1 to prevent their testimony. (App. at 1; Memorandum of Points and Authorities at 1). Neither 2 assertion is supported because neither is true. In reality, Plaintiffs knew for nearly a week that Mr. 3 Doebele and Ms. Boltax would not appear for their depositions on the scheduled dates because 4 counsel representing the witnesses contended that Plaintiffs failed to compel their attendance 5 through the process provided in their states of residence.2 Contrary to Plaintiffs’ assertion, Mr. 6 Doebele and Ms. Boltax provided Plaintiffs with ample notice of their positions that they were not 7 “properly and legally served” with a subpoena. (Memo. at 2). Further, it appears Plaintiffs were 8 aware as early as October 20, 2023 that Paine would not appear for its deposition due to scheduling 9 issues. Plaintiffs’ attempt to accuse Twin City of conspiring with these witnesses is both untrue 10 and absurd. At the very least, it provides no basis for unilaterally extending discovery for Plaintiffs 11 to take more depositions Plaintiffs waited months to seek, only after Plaintiffs repeatedly opposed 12 Twin City’s requests for an extension of the discovery period. 13 In short, Plaintiffs are asking the Court to grant them an extension of the discovery period 14 after the deadline has passed, and after Plaintiffs long contended that no extension was warranted. 15 Plaintiffs seek such relief based on nothing more than their hope that they may be able to one day 16 compel one of these non-witnesses to appear for a deposition. Plaintiffs failed to even seek an order 17 to compel these depositions until the end of the discovery period.3 A hypothetical order could take 18 weeks or even months to obtain, but trial is scheduled to begin in barely two months. Plaintiffs’ 19 unreasonable failure to timely seek these depositions within the discovery period is not a basis for 20 extending the discovery period indefinitely. 21 DATED: November 22, 2023 MAYNARD NEXSEN P.C. 22 By: /s/ Christopher C. Frost 23 Christopher C. Frost (SBN 315932) John A. Little 24 Braden T. Morell Attorneys For DEFENDANT, 25 Twin City Fire Insurance Company 26 27 2 Undersigned counsel was copied on correspondence between counsel for Mr. Doebele and Ms. Boltax and Plaintiffs. 28 3 At present, based on documents Plaintiffs have served on undersigned counsel, it appears Plaintiffs have only instituted proceedings to compel Mr. Doebele’s deposition in New York. -3- TWIN CITY’S OPPOSITION TO EX PARTE APPLICATION FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/28/2023 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA ) 3 COUNTY OF SAN FRANCISCO ) 4 I am employed in the County of San Francisco, State of California. I am over the age of 21 and am not a party to the within action. My business address is Maynard Nexsen LLP, Two 5 Embarcadero, Suite 1450, San Francisco, California 94111. On the date indicated below, I served the foregoing document(s) described as: 6 DEFENDANT TWIN CITY FIRE INSURANCE COMPANY’S OPPOSITION TO 7 PLAINTIFFS’ EX PARTE APPLICATION SEEKING LEAVE TO TAKE DEPOSITIONS AFTER THE DISCOVERY CUTOFF 8 on the interested parties in this action by placing: [ ] the original document - OR- [X] a true and 9 correct copy thereof enclosed in sealed envelopes addressed as follows: 10 Michael John Miguel 11 Jack L. Meyer Makenna Miller 12 MCKOOL SMITH, P.C. 300 South Grand Avenue, Suite 2900 13 Los Angeles, CA 90071 mmiguel@mckoolsmith.com 14 jmeyer@McKoolSmith.com mmiller@mckoolsmith.com 15 Attorneys for Plaintiffs 16 [X] ELECTRONICALLY BY FILE&SERVEXPRESS: I electronically served the attached 17 above documents via File&ServeXpress on the recipients designated on the Transaction Receipt located on the File&ServeXpress website. 18 I declare that I am employed in the office of a member who has been admitted to the bar of 19 this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 20 Executed on November 22, 2023 in San Francisco, California. 21 22 23 Brian Day 24 25 26 27 28 -4- TWIN CITY’S OPPOSITION TO EX PARTE APPLICATION