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JAMES McMANIS (40958)
ELIZABETH PIPKIN (243611)
CHRISTINE PEEK (234573)
ABIMAEL BASTIDA (303355)
McMANIS FAULKNER
a Professional Corporation
50 West San Fernando Street, 10th Floor
San Jose, California 95113
Telephone: (408) 279-8700
Facsimile: (408) 279-3244
Email: epipkin@memanislaw.com
MARK S. ROSEN (72431)
Attorney at Law
600 W. Santa Ana Blvd., Suite 814
Santa Ana, California 92701
Telephone: (714) 285-9838
Facsimile: (714) 285-9840
Email: marksrosen@aol.com
Attorneys for Petitioner,
Aaron Persky
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
AARON PERSKY,
Petitioner,
Vv.
SHANNON BUSHEY, Santa Clara County
Registrar of Voters,
Respondent,
Michele Dauber, et al.,
Real Parties in Interest,
Alex Padilla, in his official capacity as
Secretary of State,
Intervenor.
Case No. 1-17-CV-314311
REPLY IN SUPPORT OF MOTION TO
COMPEL DEPOSITION OF REAL
PARTY IN INTEREST AND FEE
CLAIMANT, MICHELE DAUBER
Date: August 15, 2018
Time: 10:00 a.m.
Dept.: 4
Judge: The Hon. Kay Tsenin (sitting by
assignment)
REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE
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TABLE OF CONTENTS
INTRODUCTION .essssessssssessssesssscsssvesseessssesssecsssesssesssscssssscssecsssecssvecssessssessussssavecssnsessnseessseenssesened 5
DISCUSSION 0... .cscessessssssesssesssesssessscsscsavesscssvesnessvcssessesssessneasessussseceuesavecsessnessuosssesuecnueseneeanseneensersees 5
1. Dauber’s Fee Motion under Section 1021.5 Warrants Discovery Because Issues of
Fact Predominate, .....c.sccsssessesssssessssessssssseesesseesesscssesesssssessssneesssscsesseanesseeneenssreenenes 5
A. Dauber’s Fee Motion Raises New Factual Issues Disputed by Petitioner.........5
B. The Factual Disputes Warrant Discovery. 0.0... esssessssesessesesreesesneseenenssensarenene 6
Il. It is Not “Burdensome” to Require a Litigant Claiming Fees to Attend a
Deposition. ....ssccccessessecsssessessesseesssessessessssscssessssesssesssvcsscssssessesseenseessvessessessesneeneaveseees 9
A. The Deposition Notice Is Proper under the Code of Civil Procedure... 9
B. There Is No Heightened Good Cause Requirement to Depose a Party. .......... 10
C. Dauber Fails to Show Any Purported Burden Outweighs the Right to
DISCOVETY ...ssesssesssecsesssecseesessseessesssesnscssssseesessnsesesssecsesesesssecssessesensssessneeseeennesses 11
Ill. There Is No Reason to Delay a Decision on Petitioner’s Motion to Compel........ 13
CONCLUSION... cessesssssesssesstessesssesssssesvessnesuesansesessscesessneesessuessnessssuesssssnessueasecsuessusaseensetueenseens 13
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TABLE OF AUTHORITIES
CASES
Bell v, Vista Unified School Dist. (2000) 82 Cal. App.4th 672 v.cccscssssessessesessesreesessrereessereseeseeee 6
1 6
Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961
Carehouse Convalescent Hosp. v. Superior Court (Sims) (2006) 143 Cal.App.4th 1558............ 10
Ciani v. San Diego Tr. & Sav. Bank (1994) 25 Cal. App.4th 563 ....sccssessessesseesseesessnsessseseeeness 6,7
Conservatorship of Whitley (2010) 50 Cal.4th 1206 ...cccscesssesessesessessesessessesseessesesseesessnseseesvess 7
Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302....cscccsssessessessesseseesreseeseeseeseenveses 7
Emerson Elec. Co. v. Superior Court (Grayson) (1997) 16 Cal.4th 1101. cseseseseceseeeeneenee 11
In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation
(Ist Cir. 1995) 56 F.3d 295...
Los Angeles County Bd. of Supervisors v. Superior Court (ACLU of Southern Cal.) (2016)
2 Cal. Sth 282 vw iceccccccssssessessessesseseesesessessesseesessessesssesssesvsseesssesssseescessssssesesssscssssesseesetssesee 10
Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d Lo... 8
Lyons v. Chinese Hosp. Assn. (2006) 136 Cal.App.4th 1331 ..csecsssessssesseeseseesssseessessarsssesesesees 7
Millview County Water District v. State Water Resources Control Board (2016)
4 Cal.App.Sth 759 ...cssssssssssssssessssssseesenesssecsesesessssesssensesesssessssseassseeesessseenssseassseasseeneacaneaees 8
Oak Grove School District v. City Title Insurance Co. (1963) 217 Cal.App.2d 678... wd
Riverside Sheriff's Association v. County of Riverside (2007) 152 Cal. App.4th 414 vce 10
Roybal v. Governing Board of Salinas City Elementary School Dist. (2008)
159 Cal. App.4th 1143 v.scecssessssesseesssesssvessssesssecsssessssesssvessnscssessseesssesssesssseeesnvessssssssseesss 6,8
Serrano v. Unruh (1982) 32 Cal.3d 621 vcsssecsessessesvesessscsssseessssesessssasessssesessssseeseesesassavsavssssessnees 11
Snyder v. Superior Court (Snyder) (1970) 9 Cal.App.3d 579 w.cecsecsesessssessesseseeseeseesnessesseseseessees 10
wT
Summit Media LLC vy. City of Los Angeles (2015) 240 Cal.App.4th 171...
Woodland Hills Residents Assn. Inc., v. City Council (1979) 23 Cal.3d 917 sesso 6,7
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STATUTES
Code Civ. Proc., § 1021S cecsesseessesssessesssesessssesesssecssesseessessessscssssssesanesseessessnseseesnsenesseesseess 5,6, 7,8
Code Civ. Proc., § 2025.250 vcsessesessssseresessessssesssessssesesessesssssessssessusssssseestsesessssssssesseseeseeses 9,10
Code Civ. Proc., § 2025.250, Subd. (8) ..essseeesesseeestesessssesessssessesseseersseessesesssensaessssessssessseesssesneee 9
Code Civ. Proc., § 2025.260 ..esesssssenssssssssssssssssssssssvsscsssvsncsssssssssesssssenssseseeserensevensavenseseneseenees 9
Code Civ. Proc., § 2025.420 ic cessesecsssesessssesesssrssssessesssersssscsnssssssssecsssssesscsvsasseseesssessssesesseesssrense ll
TREATISES
Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018)
§ 8:393, p. 8D-9 vececeesecssesssessesseessessrsssessvsssesssssesseeseeesseseesssesessssesseasecsesessessnetsneesesnness 13
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INTRODUCTION
Real party in interest and fee claimant Michele Dauber (“Dauber”) asserts the right to
recover fees as a “successful party,” but disclaims any obligation to answer deposition questions
relevant to the issues she has raised through her fee motion. Rather than seek a protective order,
Dauber simply refused to attend her noticed deposition. Dauber fails to justify her refusal to
appear, and fails to show the deposition would impose any burden that outweighs Petitioner’s
right to discovery. Petitioner’s motion to compel Dauber’s deposition should be granted.
DISCUSSION
I. Dauber’s Fee Motion under Section 1021.5 Warrants Discovery Because Issues
of Fact Predominate.
The Court of Appeal has expressly authorized discovery after entry of judgment where,
as here, a motion to tax costs or a motion for attorneys’ fees is pending. (See Oak Grove School
District v. City Title Insurance Co. (1963) 217 Cal.App.2d 678, 709-13.) Under these
circumstances, the moving party is seeking testimony concerning an issue of fact which did not
exist at the time of trial. (See Petitioner’s Motion to Compel Deposition of Real Party in Interest
and Fee Claimant, Michele Dauber (“Motion to Compel”), pp. 6-7; see also Oak Grove, supra,
217 Cal.App.2d at 709-13.) Dauber does not dispute that, “in an appropriate case, post-
judgment discovery — including a deposition — is legally authorized in connection with a motion
to tax costs or a motion for award of attorneys’ fees.” (See Dauber’s Opposition to Petitioner’s
Motion to Compel (“Opposition”), p. 3.) It appears, then, that the dispute lies over whether this
is “an appropriate case.”
A. Dauber’s Fee Motion Raises New Factual Issues Disputed by Petitioner.
Dauber’s fee motion raises issues of fact that did not previously exist in this litigation:
whether an award of attorneys’ fees is warranted, and the reasonableness of the fees and costs
claimed. (See Motion to Compel, pp. 6-7.) Dauber’s argument is flawed, because Dauber
glosses over the analyses and requirements related to these issues. Specifically, Dauber
oversimplifies the issue of whether an award of attorneys’ fees is warranted by asserting that the
criteria set forth in Code of Civil Procedure section 1021.5 call for nothing more than a “legal
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determination.” (See Opposition, p. 4.) As detailed below, case law shows otherwise.
Eligibility for fees under section 1021.5 is established when “(1) plaintiffs’ action ‘has
resulted in the enforcement of an important right affecting the public interest,’ (2) ‘a significant
benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large
class of persons’ and (3) ‘the necessity and financial burden of private enforcement are such as to
make the award appropriate.”” (See Woodland Hills Residents Assn. Inc., v. City Council (1979)
23 Cal.3d 917, 935.) In this case, the application of the criteria for a fee award under section
1021.5 is a mixed question of law and fact. (See, e.g., Roybal v. Governing Board of Salinas
City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1148.) In any event, Dauber must
prove facts that show she is entitled to relief under these criteria. (See Ciani v. San Diego Tr. &
Sav. Bank (1994) 25 Cal.App.4th 563, 571 [Whether the applicant has proved each of these
criteria is a matter primarily vested in the trial court.”].)
Here, Petitioner disputes Dauber’s eligibility under section 1021.5, which raises factual
issues. Specifically, whether Dauber’s participation in this action caused a benefit, “is a factual
question for the trial judge [citation], whose determination will not be disturbed if supported by
substantial evidence.” (See id. at 577 [emphasis added].) Similarly, “[t]he significance of the
benefit conferred is determined from a realistic assessment of all the relevant surrounding
circumstances. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 690 [emphasis
added]; see also Californians for Responsible Toxics Management v. Kizer (1989) 211
Cal.App.3d 961, 967-68 [considering the chronology of events in the context of the catalyst
theory].)
Here, Petitioner’s deposition notice and related requests for documents seek to discover
information regarding the chronology of events that led up to, and during, this action. Facts
related to the chronology leading up to this action, and the alleged benefit conferred, are directly
relevant to Dauber’s fee motion.
B. The Factual Disputes Warrant Discovery.
As to the “necessity and financial burden of private enforcement,” courts have observed
that this “requirement really examines two issues: whether private enforcement was necessary
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and whether the financial burden of private enforcement warrants subsidizing the successful
party’s attorneys.” (See Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214-15 [internal
quotations and citations omitted].) The analysis of “necessity” of private enforcement “looks to
the adequacy of public enforcement and seeks economic equalization of representation in cases
where private enforcement is necessary. [Citations.]” (/d. at 1215 [citing Lyons v. Chinese Hosp.
Assn. (2006) 136 Cal.App.4th 1331, 1348].) An “award of attorney fees is not appropriate when
the public rights in question were adequately vindicated by governmental action.” (Whitley,
supra, 50 Cal.4th at 1215; see also, e.g., Ciani, supra, 25 Cal.App.4th at 567, 573 [denying fees
under section 1021.5 because lawsuit was “unnecessary,” in light of the action by the
government].)
In evaluating the element of financial burden, “the inquiry before the trial court ... [is]
whether there were ‘insufficient financial incentives to justify the litigation in economic terms.””
(Summit Media LLC vy. City of Los Angeles (2015) 240 Cal.App.4th 171, 193 [quoting Whitley,
supra, 50 Cal.4th at 1211].) The cost of the claimant’s legal victory must transcend his or her
personal interest, “that is, when the necessity of pursuing the lawsuit placed a burden on the
plaintiff out of proportion to his individual stake in the matter.” (Whitley, supra, 50 Cal.4th at
1215 [quoting Woodland Hills, supra, 23 Cal.3d at 941] [internal citations and quotations
omitted].) If the plaintiff had a “personal financial stake” in the litigation “sufficient to warrant
[the] decision to incur significant attorney fees and costs” in the lawsuit, an award under section
1021.5 is inappropriate. (Summit Media, supra, 240 Cal.App.4th at 193-94.) The purpose of
section 1021.5 is to provide some incentive for the plaintiff who acts as a true private attorney
general, prosecuting a lawsuit that enforces an important public right and confers a significant
benefit. (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1329.) “Section 1021.5
was not designed as a method for rewarding litigants motivated by their own pecuniary interests
who only coincidentally protect the public interest.” (/bid.)
To that end, courts have allowed a party challenging a claimant’s “financial burden,” to
engage in discovery and introduce evidence on these matters. (See Woodland Hills, supra, 23
Cal.3d at 941-42 [ordering that on remand, the parties be permitted to introduce evidence on the
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whether the underlying suit transcended claimant’s personal interests, and whether the litigation
placed a disproportionate burden on claimant]; see also, e.g., Millview County Water District v.
State Water Resources Control Board (2016) 4 Cal.App.5th 759, 769-70 [evaluating Millview’s
financial incentives, the value of Millview’s potential financial gains and obligations].)
Dauber argues the elements of section 1021.5 must be determined based on the record
already before the Court, and cites as an example, Los Angeles Police Protective League v. City
of Los Angeles (1986) 188 Cal.App.3d 1, 8 (“Police Protective League”). (See Opposition, p. 4.)
Dauber further argues that this Court is not required to make factual findings based on
conflicting testimony for live witnesses of varying credibility because whether the action
enforced an important right is a question of law. (See ibid.) Dauber’s reliance on this case is
misguided.
First, the court in Police Protective League addressed issues related to the scope of
review on appeal of an award of attorneys’ fees under section 1021.5. (See Police Protective
League, supra, 188 Cal.App.3d. at 7.) Second, while the court held that the appellate court is
just as capable to decide the “enforcement of an important right” element and the “significant
benefit” element of section 1021.5, it also stated that “[w]Jhere a trial court acquires the necessary
available evidence and uses valid methodology to arrive at the required estimates, its conclusions
about the third and fourth elements of the 1021.5 test will merit deference by the appellate
courts,” (Jd. at 11 [emphasis added].)' As noted above, the issues raised by Dauber’s fee motion
present mixed questions of law and fact. (See Roybal, supra, 159 Cal.App.4th at 1148.)
Therefore, Dauber’s contention that “[t]here is simply no information or testimony that [she]
could conceivably provide in her deposition that would be relevant to this issue or that would
assist the court in determining whether section 1021.5’s criteria have or have not been met in this
case[]” is wrong. (See Opposition, p. 4.) Dauber’s own declaration submitted in support of her
fee request asserts she has personal knowledge of facts relevant to her request. (See Declaration
! The court in Police Protective League identified the “necessity and financial burden of private
enforcement” as the third element; the court also identified a fourth requirement, that “fees
should not in the interest of justice be paid out of recovery, if any.” (See Police Protective
League, supra, 188 Cal.App.3d at 6 [quoting Code Civ. Proc., § 1021.5].)
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of Michele Dauber, § 1, attached as Exh. A to the Declaration of Christine Peek in Support of
Petitioner’s Motion to Compel, filed on July 13, 2018.) Dauber further claims: “if called upon to
do so, [she] could and would testify competently thereto.” ([bid.)
Here, Petitioner is entitled to obtain discovery regarding the subject matter of Dauber’s
fee motion. Specifically, Petitioner is entitled to seek information that may be admissible or
appears reasonably calculated to lead to the discovery of admissible evidence related to the
elements of section 1021.5. Information that can refute Dauber’s claims of “necessity” and
“financial burden” is essential to this inquiry. Dauber’s testimony would shed light on these
factual issues. The broad and permissive principles of discovery and the factual issues raised by
Dauber warrant discovery.
Il. It is Not “Burdensome” to Require a Litigant Claiming Fees to Attend a
Deposition.
Dauber asserts her deposition should not be allowed, because she, “a professor at
Stanford Law School,” and her Los Angeles counsel, would have to “take substantial time out of
their schedules in order to travel to San Jose to sit for any deposition.” (See Opposition, pp. 7-8.)
Although there is nothing unusual about noticing a deposition in a fee proceeding, or recording it
by audio-visual means, Dauber insists “the entire deposition itself is a charade, designed
primarily to harass Dauber and to question her about the recall campaign, not the fee motion.”
(See Opposition, p. 9.) Dauber fails to show these “burdens” warrant any limit on the usual
discovery methods.
A. The Deposition Notice Is Proper under the Code of Civil Procedure.
Dauber’s objection that the location of the deposition is burdensome has no merit. At the
option of the deposing party, a party’s deposition may be noticed at any location within 75 miles
of the party’s residence, or, if the deposition takes place in the county where the action is
pending, within 150 miles of the party’s residence. (See Code Civ. Proc., § 2025.250, subd. (a).)
The Code does not restrict the location of a party’s deposition based on the residency of a party’s
counsel. (See id., §§ 2025.250, 2025.260.) Here, by her own account, Dauber made the decision
to hire counsel based in Los Angeles. (See Declaration of Michele Dauber, {J 3-5, attached as
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Exh.’A to the Declaration of Christine Peek in Support of Petitioner’s Motion to Compel, filed
on July 13, 2018.) This choice does not entitle her to refuse to attend because the deposition was
noticed for San Jose. Neither Dauber’s status as a Stanford Law Professor nor her counsel’s Los
Angeles location warrant relieving her of the obligation to respond to discovery, just like any
other party. (See Code Civ. Proc., § 2025.250; cf. Snyder v. Superior Court (Snyder) (1970) 9
Cal.App.3d 579, 586 [plaintiffs only recourse to prevent out-of-state deposition was to move for
a protective order, which plaintiff failed to do], superseded by statute on other grounds.)
B. There Is No Heightened Good Cause Requirement to Depose a Party.
Citing Riverside Sheriff's Association v. County of Riverside (2007) 152 Cal.App.4th
414, Dauber claims that if “extremely good cause” must be shown to depose an attorney whose
fees are at issue, then “extremely good cause” also must be shown to depose a party in a fee
proceeding. (See Opposition, p. 7.) This reasoning is faulty.
Depositions of opposing counsel are “presumptively improper, severely restricted, and
require ‘extremely good cause.”” (See Carehouse Convalescent Hosp. v. Superior Court (Sims)
(2006) 143 Cal.App.4th 1558, 1562.) As noted in Carehouse, strong policy reasons support the
“extremely good cause” requirement for attorney depositions. It is difficult to serve as both
witness and advocate; such depositions carry a particular risk that one side will gain an unfair
advantage from the other’s work product, and increase the likelihood that the attorney will be
called as a trial witness; and such depositions increase the likelihood of disputes over what is and
isn’t protected work product, potentially causing pre-trial delays. (See id. at 1562-63.)
Such concerns are not present here. Dauber will not have to serve as both witness and
advocate. There is no upcoming trial at which anyone will be called as a witness. The contents
of legal invoices are privileged “only if they either communicate information for the purpose of
legal consultation or risk exposing information that was communicated for such a purpose.”
(See Los Angeles County Bd. of Supervisors v. Superior Court (ACLU of Southern Cal.) (2016) 2
Cal.Sth 282, 300 [holding privilege applies to invoices that reflect work in active and ongoing
litigation].) The rationale underlying Carehouse and Riverside Sheriff's Association does not
apply to depositions of the litigants themselves.
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The other authorities cited by Dauber do not support her position. Jn re Thirteen Appeals
Arising Out of San Juan Dupont Plaza Hotel Fire Litigation (1st Cir. 1995) 56 F.3d 295 is a
federal case that did not rule on California discovery procedures. Moreover, Petitioner here
seeks a single deposition, hardly the “litigation of mammoth proportions” described in In re
Thirteen Appeals. (See ibid.) Serrano v. Unruh (1982) 32 Cal.3d 621 (“Serrano IV’) also does
not aid Dauber. Serrano IV held it was not error to deny discovery of public interest lawyers’
salaries (see id. at 641-42), but Petitioner is not seeking discovery about the salaries of Dauber’s
counsel. Again, a single deposition does not raise the concerns articulated in Serrano IV. None
of these cases supports application of a heightened good cause standard here.
C. Dauber Fails to Show Any Purported Burden Outweighs the Right to Discovery.
A party seeking a protective order must show good cause for relief. (See Code Civ.
Proc., § 2025.420; Emerson Elec. Co. v. Superior Court (Grayson) (1997) 16 Cal.4th 1101,
1110.) Here, Dauber failed to seek a protective order, and in addition, fails to show good cause
to deny a deposition.
Dauber points first to a newspaper article, which she claims shows Petitioner’s counsel’s
intent to harass. (See Opposition, p. 8.) Petitioner’s counsel is quoted as stating the right of
recall was never in question (notwithstanding his opposition to this particular recall), and stating
his intent to question everything about the fees, “whether her attorneys had been paid, ‘what the
invoices were, what the payments were, where they got the money.’” (See Exh. A to Declaration
of Fredric Woocher in Support of Dauber’s Opposition to Motion to Compel, filed on August 3,
2018.) While hyperbolic, these comments are nonetheless related to the attorneys’ fees at issue
and whether or not Dauber’s participation in this lawsuit conferred a benefit under section
1021.5. They do not indicate any intent to ask questions that are unrelated to the issues Dauber
herself raised by seeking fees.
Dauber also points to the document requests attached to the deposition notice as evidence
of burden, complaining that they seek information predating the lawsuit. As set forth above, the
entire chain of events leading up to and during the lawsuit is relevant to whether or not Dauber’s
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participation conferred a benefit, whether it was necessary, and whether she and the recall
proponents received a pecuniary benefit that outweighed the financial burden.
In her fee motion, Dauber argued:
On March 26, 2018, the Sixth District Court of Appeal unanimously affirmed this
Court’s denial of Petitioner’s writ petition in a 20-page published opinion that
fully analyzed and soundly rejected each of Petitioner’s legal arguments. As a
result, the election on Petitioner’s recall went forward as scheduled on June 5,
2018, and Santa Clara residents voted by almost a two-to-one margin to recall
Petitioner from office.
(See Memorandum of Points and Authorities in Support of Dauber’s Motion for Attorneys’ Fees
on Appeal, at 7:14-18, attached as Exh. A to the Declaration of Christine Peek in Support of
Petitioner’s Motion to Compel, filed on July 13, 2018.) It is not reasonable for Dauber to now
argue that questions about the recall campaign itself are off limits. Further, even if it were
reasonable for Dauber to presume what questions will be asked based on a handful of document
requests — and it is not — the document requests seek communications about this action, the
events underlying this action, and how much everything cost, all of which is relevant in a fee
proceeding. (See Exh. B to the Declaration of Christine Peek in Support of Petitioner’s Motion
to Compel, filed on July 13, 2018.)
Dauber also complains that Petitioner’s counsel would not identify the subject matter of
the deposition except to say it was standard practice to seek such discovery, but this argument
fails to acknowledge the fact-based nature of the elements Dauber must prove in order to recover
fees. As discussed in the meet and confer call, and confirmed in the meet and confer
correspondence, Petitioner’s counsel made clear that discovery was warranted on these elements.
(See Exh. C to the Declaration of Christine Peek in Support of Petitioner’s Motion to Compel,
filed on July 13, 2018 [email dated June 26, 2018, at 1:00 p.m.].) There is no requirement that
Petitioner’s counsel provide more specific information about the topics to be covered.
Finally, Dauber’s claim that she offered to cooperate rings hollow. In reality, Dauber
unilaterally refused to appear for any deposition, despite acknowledging that depositions are
allowed in fee proceedings. There is no reason why Dauber should be exempt from any
generally applicable discovery method. Having chosen to participate as a party, and having
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REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE
CLAIMAINT, MICHELE DAUBER; Case No. 1-17-CV-314311SOD mem ND Hh BF WBN
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chosen to claim fees on the ground that she is a “successful party,” Dauber may not pick and
choose which rules to follow.
Ill. There Is No Reason to Delay a Decision on Petitioner’s Motion to Compel.
Dauber suggests as an alternative that the Court deny Petitioner’s motion without
prejudice until after Petitioner files his opposition to her fee motion. (See Opposition, pp. 10-
11.) This suggestion would not make the proceedings more efficient, and it undermines
Dauber’s own argument that no deposition should be allowed because fee proceedings are
supposed to be “summary and relatively straightforward.” The only goal Dauber’s suggestion
would achieve is giving her a more specific preview of the topics to be covered at the deposition.
Again, there is no heightened good cause requirement, and proceeding in this manner would
needlessly deprive Petitioner of the benefits of a deposition — the “most effective form of
examination,” and “best way of evaluating a witness’ credibility and demeanor[.]” (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) § 8:393, p.
8D-9.)
The Court should decline Dauber’s suggestion and instead order her to appear for
deposition within ten (10) days of the hearing on Petitioner’s Motion to Compel. The hearing on
Dauber’s fee motion should be reset so as to allow Petitioner the opportunity to use the
deposition transcript to oppose the motion.
CONCLUSION
Dauber’s refusal to appear for deposition is unjustified. Petitioner’s motion to compel
Dauber’s deposition should be granted.
DATED: August 10, 2018 McMANIS FAULKNER
Lf Ltt
JAMES Mc! IS
Attorneys for Petitioner,
AARON PERSKY
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REPLY IN SUPPORT OF MOTION TO COMPEL DEPOSITION OF REAL PARTY IN INTEREST AND FEE
CLAIMAINT, MICHELE DAUBER; Case No. 1-17-CV-314311