Preview
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023
Exhibit 16
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023
1 MCKOOL SMITH, P.C.
Michael John Miguel (SBN 145182)
2 mmiguel@mckoolsmith.com ELECTRONICALLY
Jack L. Meyer (SBN 323915)
3 jmeyer@McKoolSmith.com FILED
Makenna Miller (SBN 329244) Superior Court of California,
County of San Francisco
4 mmiller@mckoolsmith.com
300 South Grand Avenue, Suite 2900 11/17/2023
Clerk of the Court
5 Los Angeles, California 90071 BY: BOWMAN LIU
Telephone: (213) 694-1200 Deputy Clerk
6 Facsimile: (213) 694-1234
7 Attorneys for Plaintiffs
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SAN FRANCISCO
11
12 FOX PAINE & COMPANY, LLC.; FOX PAINE ) Case No. CGC-17-557275
CAPITAL FUND II INTERNATIONAL, L.P.; FP
)
13 INTERNATIONAL LHP, L.P.; FOX PAINE ) EX PARTE APPLICATION FOR AN
INTERNATIONAL GP, LTD.; AND SAUL A. ORDER GRANTING LEAVE TO
MCKOOL SMITH, P.C.
)
LOS ANGELES, CA
14 FOX, ) TAKE CERTAIN THIRD PARTY
) DEPOSITIONS AFTER THE
15 Plaintiffs, DISCOVERY CUTOFF
)
16 vs. ) Judge: Hon. Andrew Y. S. Cheng
) Dept: 613
17 TWIN CITY FIRE INSURANCE COMPANY; ST. )
PAUL MERCURY INSURANCE COMPANY; ) DATE: November 17, 2023
18 LIBERTY MUTUAL INSURANCE COMPANY; ) TIME: 10:00 A.M.
AND DOES 1-10, INCLUSIVE, ) DEPT.: 613
19 )
Defendants. )
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EX PARTE APPLICATION RE: THIRD PARTY DEPOSITIONS AFTER CUTOFF
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023
1 EX PARTE APPLICATION
2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE that Plaintiffs Fox Paine & Company, LLC, Fox Paine Capital
4 Fund II International, L.P., FP International LPH, L.P., Fox Paine International GP, Ltd., and Saul
5 A. Fox (collectively referred to as “Plaintiffs”) hereby apply ex parte for an Order granting leave to
6 take St. Paul’s deposition after the discovery cutoff.
7 This application is brought pursuant to Rules 3.1200-3.1207 of the California Rules of Court,
8 on the ground that good causes exists for the relief sought. Certain out-of-state third party
9 witnesses, who were each duly served with valid subpoenas calling for their deposition within the
10 discovery period, refused to appear pursuant to their subpoenas. The witnesses and their locations
11 are: Dan Doebele, Twin City’s former corporate designee (New York), Reena Boltax, Twin City’s
12 claims-handler (New Jersey) and Paine Schwartz, the entity Twin City conspired with to secure
13 Plaintiffs’ policy proceeds. Thus, Plaintiffs are in the process of seeking to compel the attendance of
MCKOOL SMITH, P.C.
LOS ANGELES, CA
14 these witnesses in the state where they reside and the subpoenas were issued. Due to the last-minute
15 refusals to appear, the discovery cutoff will lapse before the issuing courts can compel, and
16 Plaintiffs can take, these depositions.
17 Plaintiffs would be irreparably harmed by the inability to take these depositions—all of
18 whom are either former employees related to Twin City and for whom Twin City refused to make
19 available for deposition or Twin City’s co-conspirator—because each has discoverable information
20 bearing directly on Plaintiffs’ claims against Twin City Fire Insurance Company, set for trial
21 January 22, 2024. Twin City should not profit from the eleventh-hour maneuvers to prevent
22 Plaintiffs from obtaining further admissible evidence concerning the wrongful conduct of Twin City.
23 Thus, good cause exists to allow these depositions, all of which would have taken place during the
24 discovery period had the witnesses complied with their legal obligation to do so, to take place after
25 the discovery cutoff upon receipt of orders compelling them from the several states involved.
26 Plaintiffs contacted Twin City’s counsel, in person, on November 16, 2023, before 10:00
27 a.m. concerning the subject matter of this motion, and advised Twin City of their intent to apply ex
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EX PARTE APPLICATION RE: THIRD PARTY DEPOSITIONS AFTER CUTOFF
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023
1 parte for the relief sought herein. Twin City has informed Plaintiffs it intends to oppose the
2 Application.
3 This Application is based on this Notice, the attached Memorandum of Points and
4 Authorities, the Declaration of Michael John Miguel filed concurrently herewith, and such other and
5 further evidence as the Court may consider.
6 Respectfully submitted,
7
8 DATED: November 17, 2023 MCKOOL SMITH, P.C.
9
10 By____________________________________
Michael John Miguel
11 Jack L. Meyer
Makenna Miller
12
Attorneys for Plaintiffs
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MCKOOL SMITH, P.C.
LOS ANGELES, CA
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EX PARTE APPLICATION RE: THIRD PARTY DEPOSITIONS AFTER CUTOFF
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Twin City Fire Insurance Company (“Twin City”) is a named defendant in this case.
4 Plaintiffs identified several employees or representatives of Twin City they intended to depose, and
5 asked Twin City whether they would make them available for deposition. For Dan Doebele, its
6 former corporate representative, and Reena Boltax, the claims handler primarily responsible for the
7 claim that is the subject of this lawsuit. Twin City informed Plaintiffs they were no longer under
8 Twin City’s control and they would not be made available for deposition. Further, Plaintiffs
9 properly served a subpoena on Paine Schwartz (formerly Fox Paine Management, III)—the party
10 receiving Plaintiffs’ policy proceeds and Twin City’s co-conspirator. Plaintiffs followed the
11 applicable rules in the states where these witnesses reside, and caused subpoenas to be issued for
12 depositions, all of which were duly served, as follows:
13 Witness Subpoena Served Deposition Date
MCKOOL SMITH, P.C.
LOS ANGELES, CA
14 Dan Doebele October 17, 2023 November 14, 2023
15 Reena Boltax October 18, 2023 November 15, 2023
16 Paine Schwartz October 16, 2023 November 17, 2023
17 Within 72 hours of each of the appointed times for their depositions, Plaintiffs received
18 correspondence from counsel for each of these witnesses objecting to the subpoenas and affirming
19 the refusal to appear of each witness. The discovery cutoff in this matter is November 17, 2023, and
20 there is no possibility the processes required of the issuing courts to compel attendance could be
21 completed, and the depositions taken, in the time between notice of refusal to attend and the
22 discovery cutoff.
23 The irreparable harm to Plaintiffs of allowing procedural maneuvers to deprive Plaintiffs of
24 directly relevant evidence is manifest.
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EX PARTE APPLICATION RE: THIRD PARTY DEPOSITIONS AFTER CUTOFF
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023
1 II. ARGUMENT
2 A. The Court Should Grant Leave to Take The Third Party Depositions After the
Discovery Cutoff.
3
4 Plaintiffs properly and legally served the third party witnesses with valid subpoenas calling
5 for the depositions within the discovery period. Plaintiffs are confident the issuing courts will agree
6 with the propriety of Plaintiffs’ actions in this regard, and will compel attendance. Since the compel
7 order can only be obtained after the discovery cutoff, Plaintiffs submit the depositions should be
8 allowed to proceed once compelled.
9 B. Plaintiffs Have Complied With the Procedural Requirements for this Ex Parte
Application
10
11 Plaintiffs notified counsel for Defendant on November 16, 2023 before 10:00 a.m., in
12 person, of their intention to apply ex parte for the relief sought herein. Twin City counsel responded
13 that it would oppose the Application.
MCKOOL SMITH, P.C.
LOS ANGELES, CA
14 III. CONCLUSION
15 For the foregoing reasons, Plaintiffs respectfully request the Court enter and order granting
16 leave to Plaintiffs to take the depositions of Dan Doebele, Reena Boltax and Paine Schwartz after
17 the discovery period, without altering the trial date.
18 Respectfully submitted,
19
20 DATED: November 17, 2023 MCKOOL SMITH, P.C.
21 By____________________________________
22 Michael John Miguel
Jack L. Meyer
23 Makenna Miller
Attorneys for Plaintiffs
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EX PARTE APPLICATION RE: THIRD PARTY DEPOSITIONS AFTER CUTOFF
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023
1 PROOF OF SERVICE
I declare as follows:
2
I am a resident of the State of California and over the age of eighteen years, and not a
3 party to the within action; my business address is 300 South Grand Avenue, Suite 2900, Los
Angeles, CA 90071. On November 17, 2023, I served the foregoing document described as Ex
4 Parte Application on the interested parties in this action follows:
5 EX PARTE APPLICATION FOR AN ORDER GRANTING LEAVE TO TAKE CERTAIN
THIRD PARTY DEPOSITIONS AFTER THE DISCOVERY CUTOFF
6
7 SEE ATTACHED SERVICE LIST
8 By eSERVICE: Pursuant to Code of Civil Procedure section 1010.6 and California Rules of
Court section 2.256(a)(4), I affected electronic service of the documents indicated above to the
9
attached e-mail service list by submitting an electronic PDF version of the document(s) to File &
10 ServeXpress, through the user interface at https://secure.fileandservexpress.com. All unrepresented
parties were served by US Mail as described below. My eService address is
11 eswatek@mckoolsmith.com.
12 Executed on November 17, 2023 at Los Angeles, CA.
13 I declare under penalty of perjury under the laws of the State of California that the above
MCKOOL SMITH, P.C.
is true and correct.
LOS ANGELES, CA
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Elena Swatek
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PROOF OF SERVICE
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023
1 SERVICE LIST
2 Fox Paine & Company, et al., v. Twin City Fire Insurance Company
3 San Francisco Superior Court, Case No. CGC-17-557275
4
Christopher C. Frost Attorneys for Defendants,
5 John Little St. Paul Fire Insurance Company and St.
Maynard, Cooper & Gale Paul Mercury Insurance Company
6 1901 Sixth Avenue North
2400 Regions Harbert Plaza
7 Birmingham, AL 35203
cfrost@maynardcooper.com
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JLittle@maynardcooper.com
9 bmorell@maynardcooper.com
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LOS ANGELES, CA
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PROOF OF SERVICE
Preview
FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023 Exhibit 16 FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023 1 MCKOOL SMITH, P.C. Michael John Miguel (SBN 145182) 2 mmiguel@mckoolsmith.com ELECTRONICALLY Jack L. Meyer (SBN 323915) 3 jmeyer@McKoolSmith.com FILED Makenna Miller (SBN 329244) Superior Court of California, County of San Francisco 4 mmiller@mckoolsmith.com 300 South Grand Avenue, Suite 2900 11/17/2023 Clerk of the Court 5 Los Angeles, California 90071 BY: BOWMAN LIU Telephone: (213) 694-1200 Deputy Clerk 6 Facsimile: (213) 694-1234 7 Attorneys for Plaintiffs 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SAN FRANCISCO 11 12 FOX PAINE & COMPANY, LLC.; FOX PAINE ) Case No. CGC-17-557275 CAPITAL FUND II INTERNATIONAL, L.P.; FP ) 13 INTERNATIONAL LHP, L.P.; FOX PAINE ) EX PARTE APPLICATION FOR AN INTERNATIONAL GP, LTD.; AND SAUL A. ORDER GRANTING LEAVE TO MCKOOL SMITH, P.C. ) LOS ANGELES, CA 14 FOX, ) TAKE CERTAIN THIRD PARTY ) DEPOSITIONS AFTER THE 15 Plaintiffs, DISCOVERY CUTOFF ) 16 vs. ) Judge: Hon. Andrew Y. S. Cheng ) Dept: 613 17 TWIN CITY FIRE INSURANCE COMPANY; ST. ) PAUL MERCURY INSURANCE COMPANY; ) DATE: November 17, 2023 18 LIBERTY MUTUAL INSURANCE COMPANY; ) TIME: 10:00 A.M. AND DOES 1-10, INCLUSIVE, ) DEPT.: 613 19 ) Defendants. ) 20 ) 21 22 23 24 25 26 27 28 EX PARTE APPLICATION RE: THIRD PARTY DEPOSITIONS AFTER CUTOFF FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023 1 EX PARTE APPLICATION 2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that Plaintiffs Fox Paine & Company, LLC, Fox Paine Capital 4 Fund II International, L.P., FP International LPH, L.P., Fox Paine International GP, Ltd., and Saul 5 A. Fox (collectively referred to as “Plaintiffs”) hereby apply ex parte for an Order granting leave to 6 take St. Paul’s deposition after the discovery cutoff. 7 This application is brought pursuant to Rules 3.1200-3.1207 of the California Rules of Court, 8 on the ground that good causes exists for the relief sought. Certain out-of-state third party 9 witnesses, who were each duly served with valid subpoenas calling for their deposition within the 10 discovery period, refused to appear pursuant to their subpoenas. The witnesses and their locations 11 are: Dan Doebele, Twin City’s former corporate designee (New York), Reena Boltax, Twin City’s 12 claims-handler (New Jersey) and Paine Schwartz, the entity Twin City conspired with to secure 13 Plaintiffs’ policy proceeds. Thus, Plaintiffs are in the process of seeking to compel the attendance of MCKOOL SMITH, P.C. LOS ANGELES, CA 14 these witnesses in the state where they reside and the subpoenas were issued. Due to the last-minute 15 refusals to appear, the discovery cutoff will lapse before the issuing courts can compel, and 16 Plaintiffs can take, these depositions. 17 Plaintiffs would be irreparably harmed by the inability to take these depositions—all of 18 whom are either former employees related to Twin City and for whom Twin City refused to make 19 available for deposition or Twin City’s co-conspirator—because each has discoverable information 20 bearing directly on Plaintiffs’ claims against Twin City Fire Insurance Company, set for trial 21 January 22, 2024. Twin City should not profit from the eleventh-hour maneuvers to prevent 22 Plaintiffs from obtaining further admissible evidence concerning the wrongful conduct of Twin City. 23 Thus, good cause exists to allow these depositions, all of which would have taken place during the 24 discovery period had the witnesses complied with their legal obligation to do so, to take place after 25 the discovery cutoff upon receipt of orders compelling them from the several states involved. 26 Plaintiffs contacted Twin City’s counsel, in person, on November 16, 2023, before 10:00 27 a.m. concerning the subject matter of this motion, and advised Twin City of their intent to apply ex 28 -1- EX PARTE APPLICATION RE: THIRD PARTY DEPOSITIONS AFTER CUTOFF FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023 1 parte for the relief sought herein. Twin City has informed Plaintiffs it intends to oppose the 2 Application. 3 This Application is based on this Notice, the attached Memorandum of Points and 4 Authorities, the Declaration of Michael John Miguel filed concurrently herewith, and such other and 5 further evidence as the Court may consider. 6 Respectfully submitted, 7 8 DATED: November 17, 2023 MCKOOL SMITH, P.C. 9 10 By____________________________________ Michael John Miguel 11 Jack L. Meyer Makenna Miller 12 Attorneys for Plaintiffs 13 MCKOOL SMITH, P.C. LOS ANGELES, CA 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- EX PARTE APPLICATION RE: THIRD PARTY DEPOSITIONS AFTER CUTOFF FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Twin City Fire Insurance Company (“Twin City”) is a named defendant in this case. 4 Plaintiffs identified several employees or representatives of Twin City they intended to depose, and 5 asked Twin City whether they would make them available for deposition. For Dan Doebele, its 6 former corporate representative, and Reena Boltax, the claims handler primarily responsible for the 7 claim that is the subject of this lawsuit. Twin City informed Plaintiffs they were no longer under 8 Twin City’s control and they would not be made available for deposition. Further, Plaintiffs 9 properly served a subpoena on Paine Schwartz (formerly Fox Paine Management, III)—the party 10 receiving Plaintiffs’ policy proceeds and Twin City’s co-conspirator. Plaintiffs followed the 11 applicable rules in the states where these witnesses reside, and caused subpoenas to be issued for 12 depositions, all of which were duly served, as follows: 13 Witness Subpoena Served Deposition Date MCKOOL SMITH, P.C. LOS ANGELES, CA 14 Dan Doebele October 17, 2023 November 14, 2023 15 Reena Boltax October 18, 2023 November 15, 2023 16 Paine Schwartz October 16, 2023 November 17, 2023 17 Within 72 hours of each of the appointed times for their depositions, Plaintiffs received 18 correspondence from counsel for each of these witnesses objecting to the subpoenas and affirming 19 the refusal to appear of each witness. The discovery cutoff in this matter is November 17, 2023, and 20 there is no possibility the processes required of the issuing courts to compel attendance could be 21 completed, and the depositions taken, in the time between notice of refusal to attend and the 22 discovery cutoff. 23 The irreparable harm to Plaintiffs of allowing procedural maneuvers to deprive Plaintiffs of 24 directly relevant evidence is manifest. 25 26 27 28 -1- EX PARTE APPLICATION RE: THIRD PARTY DEPOSITIONS AFTER CUTOFF FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023 1 II. ARGUMENT 2 A. The Court Should Grant Leave to Take The Third Party Depositions After the Discovery Cutoff. 3 4 Plaintiffs properly and legally served the third party witnesses with valid subpoenas calling 5 for the depositions within the discovery period. Plaintiffs are confident the issuing courts will agree 6 with the propriety of Plaintiffs’ actions in this regard, and will compel attendance. Since the compel 7 order can only be obtained after the discovery cutoff, Plaintiffs submit the depositions should be 8 allowed to proceed once compelled. 9 B. Plaintiffs Have Complied With the Procedural Requirements for this Ex Parte Application 10 11 Plaintiffs notified counsel for Defendant on November 16, 2023 before 10:00 a.m., in 12 person, of their intention to apply ex parte for the relief sought herein. Twin City counsel responded 13 that it would oppose the Application. MCKOOL SMITH, P.C. LOS ANGELES, CA 14 III. CONCLUSION 15 For the foregoing reasons, Plaintiffs respectfully request the Court enter and order granting 16 leave to Plaintiffs to take the depositions of Dan Doebele, Reena Boltax and Paine Schwartz after 17 the discovery period, without altering the trial date. 18 Respectfully submitted, 19 20 DATED: November 17, 2023 MCKOOL SMITH, P.C. 21 By____________________________________ 22 Michael John Miguel Jack L. Meyer 23 Makenna Miller Attorneys for Plaintiffs 24 25 26 27 28 -2- EX PARTE APPLICATION RE: THIRD PARTY DEPOSITIONS AFTER CUTOFF FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023 1 PROOF OF SERVICE I declare as follows: 2 I am a resident of the State of California and over the age of eighteen years, and not a 3 party to the within action; my business address is 300 South Grand Avenue, Suite 2900, Los Angeles, CA 90071. On November 17, 2023, I served the foregoing document described as Ex 4 Parte Application on the interested parties in this action follows: 5 EX PARTE APPLICATION FOR AN ORDER GRANTING LEAVE TO TAKE CERTAIN THIRD PARTY DEPOSITIONS AFTER THE DISCOVERY CUTOFF 6 7 SEE ATTACHED SERVICE LIST 8 By eSERVICE: Pursuant to Code of Civil Procedure section 1010.6 and California Rules of Court section 2.256(a)(4), I affected electronic service of the documents indicated above to the 9 attached e-mail service list by submitting an electronic PDF version of the document(s) to File & 10 ServeXpress, through the user interface at https://secure.fileandservexpress.com. All unrepresented parties were served by US Mail as described below. My eService address is 11 eswatek@mckoolsmith.com. 12 Executed on November 17, 2023 at Los Angeles, CA. 13 I declare under penalty of perjury under the laws of the State of California that the above MCKOOL SMITH, P.C. is true and correct. LOS ANGELES, CA 14 15 16 Elena Swatek 17 18 19 20 21 22 23 24 25 26 27 28 -1- PROOF OF SERVICE FILED: NEW YORK COUNTY CLERK 12/28/2023 07:42 PM INDEX NO. 161881/2023 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/28/2023 1 SERVICE LIST 2 Fox Paine & Company, et al., v. Twin City Fire Insurance Company 3 San Francisco Superior Court, Case No. CGC-17-557275 4 Christopher C. Frost Attorneys for Defendants, 5 John Little St. Paul Fire Insurance Company and St. Maynard, Cooper & Gale Paul Mercury Insurance Company 6 1901 Sixth Avenue North 2400 Regions Harbert Plaza 7 Birmingham, AL 35203 cfrost@maynardcooper.com 8 JLittle@maynardcooper.com 9 bmorell@maynardcooper.com 10 11 12 13 MCKOOL SMITH, P.C. LOS ANGELES, CA 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE