Preview
COOLEY LLP
SCHENKER (SBN 109828) FILED
MARTIN S. SAN MATEO COUNT"
101 California Street, 5th Floor
San Francisco, CA 94111
DEC 5 2015
Telephone: 5) 693-2000 0
Facsimile: (415) 693-2222 Clarke the uperior Court
4 SANTAMARIA (SBN 220934) By
JESSICA VALENZUELA E? EHK
:‘L (SBN 290511)
5 SHAWNA V. BENFIELD 285371)
JEFFREY D. LOMBARD (SBN
6 3175 Hanover Street
Palo Alto, CA 94304
Telephone: (650) 843-5000
DQp‘i» 7
Facsimile: (650) 849-7400
8
Attorneys for Defendants AIDA AL VAREZ, RAUL
9 DAVID STROHM, TOM PATTERSON,
CARL PASCARELLA
VAZQUEZ, DAVE TOMLINSON, CALIFORNIA
SUPERIOR COURT OF THE STATE OF
10
311/173,
11 COUNTY OF SAN MATEO
N0. CIV534431
12
KERRIGAN CAPITAL LLC and RYAN J.
KERRIGAN, AS TRUSTEE FOR THE MEMORANDUM OF POINTS AND
o‘i 13 individually
KERRIGAN FAMILY TRUST, situated, AUTHORITIES IN SUPPORT OF
and on behalf of all others similarly
14 DEFENDANTS’ EX PARTE APPLICATION
CERTIFICATION
TO MODIFY CLASS
Plaintiff, AND HEARING SCHEDULE
15 BRIEFING
16
v. Complaint Filed: June 26, 2015
DAVID STROHM, TOM PATTERSON, December 5, 2016
17
CARL PASCARELLA, AIDA ALVAREZ, Date:
Place: Department 7, Courtroom 8B
18 Judge: Hon. Steven L. Dylina
19 FUND
MAP ACHE INVESTMENTS L.P.and
LP. )
20 V, MADRONE PARTNERS,
DOES 1-20, inclusive,
21 Defendant.
22
23
24
_
WNIOIHO
25 :
cwss4431
3
MPAS
.
Memorandum of Points and Authorities in Sup;
26
”iii
27
28
\ m 11qq _
LLP
COOLEY
- CASE No. CIV534431
ATTORNEYS AT LAW
MEMORANDUM I/S/O DEFENDANTS’
Ex PARTE APPLICATION
ALTO
P ALO
I. INTRODUCTION
Director Defendants seek ex parte relief to modify the current class certification schedule
#UJN so that they can secure deposition testimony from James Gutierrez and to provide sufficient time
to incorporate any relevant evidence from Mr. Gutierrez’s deposition into their brief in opposition
to Plaintiffs’ pending class certification motion. Director Defendants have undertaken
extraordinary efforts over the better part of the last four months to work with counsel for Mr.
Gutierrez
KOOOVONUI
(and Plaintiffs) to schedule Mr. Gutierrez’s deposition. However, Mr. Gutierrez has
been less than cooperative, initially refusing to even respond to requests for availability and then
only providing dates where he knew counsel for Director Defendants was not available. Without
10 Mr. Gutierrez’s cooperation, Director Defendants had no choice but to subpoena Mr. Gutierrez on
11 a date that worked for counsel to the parties, hoping Mr. Gutierrez was available (December 7
12 and then December 1). Not surprisingly, Mr. Gutierrez informed Director Defendants of his
13 unavailability only after being served with the subpoenas. On November 29, 2016, Mr. Gutierrez
14 finally agreed to make himself available for deposition on December 16, 2016—two business
15 days before Defendants’ opposition to Plaintiffs’ motion for class certification is due. This does
16 not leave adequate time to obtain a transcript from the court reporter (which, even on a rush basis,
17 takes several days) and to incorporate relevant evidence into the opposition papers. As Mr.
18 Gutierrez’s testimony is critical to Director Defendants’ opposition, good cause exists to modify
19 the current class certification briefing schedule.
20 Moreover, Mr. Gutierrez has repeatedly insisted that he will only make himself available
21 for a half-day deposition, even though he has no legal basis to do so and has not sought a
22 protective order. Although Director Defendants are hopeful that Mr. Gutierrez will fully comply
23 with the subpoena and sit for a full deposition on December 16, given his prior behavior, there is
24 a significant possibility that Director Defendants will need to file a motion to compel to be able to
25 complete the deposition. Accordingly, Director Defendants seek a modest modification to the
26 current class certification briefing schedule. Specifically, the ex parte application respectfully
27 requests that the Court issue an order (1) modifying the deadline for Defendants’ opposition to
28 Plaintiffs’ motion for class certification to two weeks from the date on which Mr. Gutierrez’s
LLP
COOLEY 1.
ATTORNEYS AT LAW
PALO ALTO
MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431
deposition concludes (and any motion practice regarding such deposition, should itoccur, is
resolved) and (2) that Plaintiffs’ reply is due 20 days after Defendants’ file their opposition with a
hearing to occur approximately two weeks thereafter, as contemplated under the current class
certification schedule as entered by the Court on October 18, 2016.
II. RELEVANT BACKGROUND
On August 19, 2016, Plaintiffs and Defendants presented a class certification schedule to
the Court at the Case Management Conference. (Declaration of Jeff Lombard in Support of
\DOO\]O\
Defendants’ Ex Parte Application (“Lombard Decl.”) at 1] 2, Ex. A.) That schedule provided:
0 Deadline for Plaintiffs to file a motion for class certification: October 20, 2016;
1o 0 Opposition brief: November 30, 2016
11 0 Reply brief: December 20, 2016
12 0 Hearing on Class Certification Motion: January 9, 2017
13 (Id., Ex. A at 21:10-23.) However, as the Court expressly recognized, the schedule was
14 “tentative” and “subject to the depositions and production of documents of Mr. Gutierrez”
15 because Mr. Gutierrez’s deposition is “critical” to Defendants ability to defend against class
16 certification. (Id at 22:24-23z7.) Recognizing that unanticipated events might yet unfold, the
17 Court told the parties “[i]f we need to change the schedule, please don’t hesitate to contact the
18 Court.” (Id. at 2329-13.)
19 That same day, Mr. Gutierrez produced documents to Director Defendants, in response to
20 a subpoena served on September 3, 2015, nearly a year before. (Lombard Decl. at 111]4-5.)
21 Director Defendants had undertaken significant efforts, including filing a motion to compel, to
22 obtain documents from Mr. Gutierrez. (Id. at 114.) Mr. Gutierrez had produced some documents
23 earlier, but the production was incomplete. (Id) Like Mr. Gutierrez’s previous productions, the
24 supplemental production in August 2016 was also incomplete. (Id. at 1]5.) Again, Director
25 Defendants had to press Mr. Gutierrez to make a complete production. They sent a letter to Mr.
26 Gutierrez on August 26, 2016 identifying a number of deficiencies with the production. (Id. at 1]
27 5, Ex. B.) Even though Mr. Gutierrez’s counsel responded to the letter by telephone on
28
COOLEYLLP 2.
ATTORNEYS AT LAW
PALO ALTO
MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431
September 2, 2016, he was not prepared to discuss the substantive deficiencies identified by
Director Defendants. (Id. at 11 6.) Following the Labor Day weekend, Director Defendants again
contacted Mr. Gutierrez asking him to address the substantive deficiencies with his production
and to provide his availability for deposition on six separate dates in October. (Id.at1l 7, Ex. C.)
Mr. Gutierrez did not respond. (Id. at 118, Ex. D.) Defendants reached out to Mr. Gutierrez’s
counsel many times (including emails on September 13, 15 and 23 and telephone calls on
September 16 and 23) about the deficient production and Mr. Gutierrez’s availability for
deposition.
ONOOOVON
Director Defendants proposed three additional dates in October. Again, Mr.
Gutierrez did not respond. (Id. at 1[ 9.)
1 As a last-ditch effort to avoid further motion practice, on September 27, 2016, Director
11 Defendants sent Mr. Gutierrez’s counsel a draft motion to compel informing Mr. Gutierrez that
12 without an answer to the outstanding questions regarding his production by the following day,
13 Director Defendants would file the motion and seek sanctions. (Id. at11 10, Ex. E.) ~Within two
14 hours of receiving the draft motion, Mr. Gutierrez’s counsel finally responded, indicating Director
15 Defendants had his “full attention” and responding to the matters addressed in the draft motion
16 and previous meet and confer communications. (Id. at11 11.) The next day, Director Defendants
17 sent an email memorializing the September 27 telephone call, asking Mr. Gutierrez to confirm in
18 writing the representations made by counsel, and, again, requesting that Mr. Gutierrez provide his
19 availability for deposition for dates in the last week of October and for the first two weeks of
20 November. (Id. at11 12, Ex. F.) Mr. Gutierrez produced additional documents on October 5,
21 2016, but never responded with his availability for deposition. (Id. at 1113.)
22 On October 6, 2016, Director Defendants again requested Mr. Gutierrez’s availability for
23 deposition and offered November 4 or 11 as two additional dates. (Id. at 11 14, Ex. G.)
24 Simultaneously, Director Defendants asked Plaintiffs and co-defense counsel for their availability
25 on November 4 or 11. (Id.1[ 15, Ex. H.) However, Plaintiffs were not available on November 4
26 and co-counsel for Mr. Pascarella was not available on November 11, but offered November 7 as
27 an alternative. (Id) Mr. Gutierrez never responded to this email. Hearing nothing, on October
28 12, Director Defendants notified Mr. Gutierrez and Plaintiffs they were no longer available on
COOLEYLLP 3.
ATTORNEYS AT LAW
PALO ALTO
MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE No. CIV534431
November 7. Plaintiffs only weighed in that they were available on November 7 after Director
Defendants had already informed the group that the date did not work. (Id) Thereafter, Mr.
Pascarella’s counsel took efforts to make themselves available on November 11. However, Mr.
Gutierrez claimed he was not available on that date. And, even though Defendants had been
trying to schedule a deposition for over a month, Mr. Gutierrez’s counsel, for the first time, stated
that he would not agree to any deposition date “prior to reaching an agreement with the parties on
the scope of Mr. Gutierrez’s deposition questioning.” (Id)
for Mr. Gutierrez’s
OKOOO\]O\
Director Defendants then proposed four additional dates deposition:
November 29, December 1,December 6 and December 7. (Id) Mr. Gutierrez did not indicate
1 whether he was available on the proposed dates, but instead proposed November 17, a date
11 Director Defendants had never indicated they were available (and on which they were not
12 available). (Id) Given that Mr. Gutierrez refused to make himself available on a mutually
13 agreeable date that would work with the class certification schedule, Plaintiffs and Defendants
14 stipulated to modify the schedule on October 17, 2016. (Id at 11 16, Ex. I.) The parties’
15 stipulation provided that Plaintiffs would file their opening brief on November 10, 2016,
16 Defendants would respond by December 21, 2016, and Plaintiffs’ would file any reply by January
17 10, 2017, with a hearing scheduled on January 31, 2017. (1d) Plaintiffs and Defendants also
18 acknowledged that the parties were available for Mr. Gutierrez’s deposition on November 29,
19 December 1, December 6 and December 7. (Id) Mr. Gutierrez, up to that point, had refused to
2o say whether he was available on any of those dates. The Court entered the stipulation on October
21 18, 2016. (Id) The following day, Plaintiffs notified Defendants that they would “not stipulate
22 to another continuance of the class certification schedule” to accommodate the scheduling of Mr.
23 Gutierrez’s deposition, even though no deposition had yet been scheduled. (Id. at 1117, Ex. J.)
24 On October 19, 2016, Director Defendants’ served Mr. Gutierrez with a deposition
25 subpoena for December 7, 2016. (Id at ‘11
18.) Six days later, on October 24, 2016, Mr. Gutierrez
26 responded for the first time that he was not available on December 7, 2016, even though this date
27 had first been proposed twelve days earlier on October 12. He also requested that (1) the
28 deposition be moved from Palo Alto to San Francisco and (2) that Director Defendants provide a
COOLEY LLP 4.
ATTORNEYS AT LAW
PALO ALTO
MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431
list of proposed topics for Mr. Gutierrez’s deposition. (Id. at 11 19.) Despite being under no
obligation to do so, Defendants’ agreed to both of Mr. Gutierrez’s requests on the condition that
he make himself available for deposition on one of the other proposed dates (November 29,
December 1, or December 6). (Id. at 1120, Ex. K.) On November 3, 2016, Mr. Gutierrez agreed
to make himself available for a half-day deposition on December 1, 2016. (Id. at 21-22,
1111 Ex.
L.) Based on Mr. Gutierrez’s representation that he was available on December 1, 2016,
Defendants served Mr. Gutierrez with an amended subpoena for December 1 and notified him
\OOO\]O\
that a half-day deposition would be insufficient. (Id. at 11 23.)
Director Defendants heard nothing from Mr. Gutierrez until November 17, 2016 — two
10 weeks later — when, Mr. Gutierrez notified Defendants that he “may now need to be'in New York
ll on business on December lst,” and requested Director Defendants’ availability for the deposition
12 on November 29 and December 9. (Id at 1124, Ex. M.) Director Defendants notified Mr.
13 Gutierrez they were unavailable on both of those dates and proposed December 6, 2016 and
14 December 12, 2016 as alternatives. (Id) However, Mr. Gutierrez claimed that neither of those
15 dates worked. (Id) On November 22, 2016, Mr. Gutierrez served objections to Director
16 Defendants’ December 1, 2016 subpoena, claiming for the first time that his counsel was
17 unavailable on December 1. (Id at 1125, Ex. N.) Significantly, Mr. Gutierrez did not object on
18 the ground that he was unavailable. (Id) Thereafter, Director Defendants’ requested Mr.
19 Gutierrez’s availability for deposition on more than twenty dates between December 6, 2016 and
20 January 20, 2017. (Id at 1124, Ex. M.) Receiving no response, Director Defendants followed up
21 with Mr. Gutierrez’s counsel on November 28, 2016 reminding him that without a firm
22 commitment to proceed on one of the alternative dates, Defendants would proceed with the
23 deposition on December 1, 2016 and would move to compel if Mr. Gutierrez did not appear. (Id
24 at 11 26, Ex. 0.) The next day, Mr. Gutierrez notified Director Defendants that he was unavailable
25 on Dec-ember 1 and agreed to make himself available on December 16, 2016 but only for a half—
26 day. (Id) On November 30, 2016, Director Defendants served Mr. Gutierrez with a second
27 amended subpoena for deposition on December 16, 2016, making it clear they intended to take a
28 full deposition and Mr. Gutierrez could not limit it toa half day absent a protective order. (Id. at11
COOLEYLLP 5.
ATTORNEYS AT LAW
PALO A LTO
MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431
27, Ex. P.)
III. THE COURT SHOULD MODIFY THE CLASS CERTIFICATION SCHEDULE
TO ACCOMODATE MR. GUTIERREZ’S DEPOSITION
It is well-settled that California's courts have the “inherent power to grant continuances or
stays under proper circumstances.” Ehrhart & Assocs. v. Superior Court, 185 Cal. App. 2d 1, 5
(1960); see also Cal. Canning Mach. Co. v. Superior Court, 3 Cal. 2d 606, 608 (1935) (trial
courts have “inherent discretion” to continue any proceeding “in aid of orderly procedure”). This
authority is codified in the California Code of Civil Procedure, which provides that “[e]very court
\OOO\]O\
shall have the power .. .[t]o provide for the orderly conduct of proceedings before it[.]” Cal. Civ.
Proc. Code §128(a)(3).
10
The Court has already recognized that Director Defendants “made a [ ] compelling case
11
that Mr. Gutierrez’s deposition is critical” and that “there’s [no] question that [Mr. Gutierrez’s]
12
deposition is first and foremost . ...to take place” before Defendants oppose class certification.
13
(Lombard Decl., Ex. A at 22:24-23:10.) Based on that determination, the Court concluded that
14
the class certification schedule was “tentative” and “subject to the deposition [ ] .. . of Mr.
15
Gutierrez, James Gutierrez” and told the parties “[i]f we need to change the schedule, please do
16
not hesitate to contact the Court.” (Id) With this understanding, the Plaintiffs and Defendants
17
agreed to “work in good faith to make adjustments” to the class certification should
18
“unanticipated events outside the parties’ control cause delays in either the production of
19
documents or the taking of [Mr. Gutierrez’s] deposition.” (Id. at 22:10-23, 23:11-23.)
20
Indeed, Defendants did everything they could to promptly schedule Mr. Gutierrez’s
21
deposition. Following Mr. Gutierrez’s deficient document production in August, Director
22
Defendants immediately attempted to engage him in meet and confer while simultaneously
23
requesting dates for his deposition. But Mr. Gutierrez did not respond. Following Mr.
24
Gutierrez’s early October production in the face of Director Defendants’ draft motion for
25
sanctions, Director Defendants again requested Mr. Gutierrez’s availability for deposition.
26
However, when Mr. Gutierrez would not agree to a mutually convenient date, Director
27
Defendants were forced to simply pick a date for the deposition (December 7, 2016) and
28
COOLEYLLP 6.
ATTORNEYS AT LAW
PALO ALTO
MEMORANDUM l/S/O DEFENDANTS’ EX PARTE APPLICATION - CASE NO. CIV534431
subpoenaed Mr. Gutierrez. When Mr. Gutierrez notified Director Defendants that he was not
available on December 7 but offered to be available on December 1, Director Defendants
immediately subpoenaed him taking his counsel’s word that December 1 was available. Yet, just
A days before the scheduled deposition, and nearly a month after Mr. Gutierrez said he was
available on December 1, 2016, Mr. Gutierrez was unavailable as he was purportedly traveling to
New York. (Mr. Gutierrez appears to have scheduled this trip while he was under subpoena for
December
\DOO\IO\UI
1, 2016.) Nevertheless, Director Defendants’ agreed to accommodate Mr. Gutierrez’s
trip and changed the date of Mr. Gutierrez’s deposition to December 16, 2016.
Simply put, Mr. Gutierrez has engaged in a course of conduct designed to delay the
10 deposition. Despite Defendants’ extraordinary efforts, this deposition has not occurred because
11 Mr. Gutierrez has refused to work cooperatively with counsel for Director Defendants to schedule
12 the deposition on a mutually convenient date. Indeed, Mr. Gutierrez either completely ignored
13 Director Defendants’ requests for his availability or offered to be available on dates he knew were
14 not available for Defendants’ counsel. In addition, Mr. Gutierrez apparently scheduled a business
15 trip to New York that conflicted with the December 1 deposition date causing a further delay. Mr.
16 Gutierrez’s own conduct has delayed his deposition by no less than three months.
17 Moreover, even if the deposition proceeds and is completed on December 16, that is two
18 business days before Defendants’ opposition to class certification is due. This does not leave
19 adequate time for Director Defendants’ to obtain a transcript from the court reporter (even on a
20 rush basis such requests take a couple of days) and incorporate relevant evidence into their
21 opposition brief. Additionally, given Mr. Gutierrez’s repeated insistence that the deposition be
22 limited to a half-day, there is a significant possibility that Defendants may be required to engage
23 in further motion practice to secure complete testimony from Mr. Gutierrez. As a result,
24 Defendants seek this ex parte relief to ensure that Mr. Gutierrez’s testimony can be incorporated
25 into their opposition brief. Specifically, Director Defendants seek an order (1) modifying the
26 class certification schedule such that Defendants’ opposition to Plaintiffs’ motion for class
27 certification would be due two weeks from the date on which Mr. Gutierrez’s deposition
28 concludes (and any motion practice regarding Mr. Gutierrez’s deposition, should it occur, be
COOLEYLLP 7.
ATTORNEYS AT LAW
PALO ALTO
MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431
'I resolved) and (2) that Plaintiffs’reply be due 20 days afier Defendants’ file their opposition with
to a hearing to occur approximately two weeks thereafter, in accordance with the current class
‘3‘ certification schedule as entered by the Court on October 18, 2016.
43-
IV. CONCLUSION
5 For the foregoing reasons, Director Defendants respectfully request that the Court issue an
‘6’ order continuing the class certification schedule as requested herein.
7’ Dated: December 2, 2016 ~
' ‘
-
.7
COOLLhfi’xZLLP/ . .,
‘
>
By: ‘
/ '
.2H l
Kan—"f”
.9:
; itrrtwo Lonihard
..
3
.
l (
10
Altar); 3s for Defendants ”x
David Strohm Tom Patterson, Aida AliL rez, Raul
Vazquez, Dave Tomlmson Carl Pascarella
Comer LLP 8'
Anvkutb A1
LAw
“"‘ "'"‘ MEMORANDUM l/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431
Preview
COOLEY LLP SCHENKER (SBN 109828) FILED MARTIN S. SAN MATEO COUNT" 101 California Street, 5th Floor San Francisco, CA 94111 DEC 5 2015 Telephone: 5) 693-2000 0 Facsimile: (415) 693-2222 Clarke the uperior Court 4 SANTAMARIA (SBN 220934) By JESSICA VALENZUELA E? EHK :‘L (SBN 290511) 5 SHAWNA V. BENFIELD 285371) JEFFREY D. LOMBARD (SBN 6 3175 Hanover Street Palo Alto, CA 94304 Telephone: (650) 843-5000 DQp‘i» 7 Facsimile: (650) 849-7400 8 Attorneys for Defendants AIDA AL VAREZ, RAUL 9 DAVID STROHM, TOM PATTERSON, CARL PASCARELLA VAZQUEZ, DAVE TOMLINSON, CALIFORNIA SUPERIOR COURT OF THE STATE OF 10 311/173, 11 COUNTY OF SAN MATEO N0. CIV534431 12 KERRIGAN CAPITAL LLC and RYAN J. KERRIGAN, AS TRUSTEE FOR THE MEMORANDUM OF POINTS AND o‘i 13 individually KERRIGAN FAMILY TRUST, situated, AUTHORITIES IN SUPPORT OF and on behalf of all others similarly 14 DEFENDANTS’ EX PARTE APPLICATION CERTIFICATION TO MODIFY CLASS Plaintiff, AND HEARING SCHEDULE 15 BRIEFING 16 v. Complaint Filed: June 26, 2015 DAVID STROHM, TOM PATTERSON, December 5, 2016 17 CARL PASCARELLA, AIDA ALVAREZ, Date: Place: Department 7, Courtroom 8B 18 Judge: Hon. Steven L. Dylina 19 FUND MAP ACHE INVESTMENTS L.P.and LP. ) 20 V, MADRONE PARTNERS, DOES 1-20, inclusive, 21 Defendant. 22 23 24 _ WNIOIHO 25 : cwss4431 3 MPAS . Memorandum of Points and Authorities in Sup; 26 ”iii 27 28 \ m 11qq _ LLP COOLEY - CASE No. CIV534431 ATTORNEYS AT LAW MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION ALTO P ALO I. INTRODUCTION Director Defendants seek ex parte relief to modify the current class certification schedule #UJN so that they can secure deposition testimony from James Gutierrez and to provide sufficient time to incorporate any relevant evidence from Mr. Gutierrez’s deposition into their brief in opposition to Plaintiffs’ pending class certification motion. Director Defendants have undertaken extraordinary efforts over the better part of the last four months to work with counsel for Mr. Gutierrez KOOOVONUI (and Plaintiffs) to schedule Mr. Gutierrez’s deposition. However, Mr. Gutierrez has been less than cooperative, initially refusing to even respond to requests for availability and then only providing dates where he knew counsel for Director Defendants was not available. Without 10 Mr. Gutierrez’s cooperation, Director Defendants had no choice but to subpoena Mr. Gutierrez on 11 a date that worked for counsel to the parties, hoping Mr. Gutierrez was available (December 7 12 and then December 1). Not surprisingly, Mr. Gutierrez informed Director Defendants of his 13 unavailability only after being served with the subpoenas. On November 29, 2016, Mr. Gutierrez 14 finally agreed to make himself available for deposition on December 16, 2016—two business 15 days before Defendants’ opposition to Plaintiffs’ motion for class certification is due. This does 16 not leave adequate time to obtain a transcript from the court reporter (which, even on a rush basis, 17 takes several days) and to incorporate relevant evidence into the opposition papers. As Mr. 18 Gutierrez’s testimony is critical to Director Defendants’ opposition, good cause exists to modify 19 the current class certification briefing schedule. 20 Moreover, Mr. Gutierrez has repeatedly insisted that he will only make himself available 21 for a half-day deposition, even though he has no legal basis to do so and has not sought a 22 protective order. Although Director Defendants are hopeful that Mr. Gutierrez will fully comply 23 with the subpoena and sit for a full deposition on December 16, given his prior behavior, there is 24 a significant possibility that Director Defendants will need to file a motion to compel to be able to 25 complete the deposition. Accordingly, Director Defendants seek a modest modification to the 26 current class certification briefing schedule. Specifically, the ex parte application respectfully 27 requests that the Court issue an order (1) modifying the deadline for Defendants’ opposition to 28 Plaintiffs’ motion for class certification to two weeks from the date on which Mr. Gutierrez’s LLP COOLEY 1. ATTORNEYS AT LAW PALO ALTO MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431 deposition concludes (and any motion practice regarding such deposition, should itoccur, is resolved) and (2) that Plaintiffs’ reply is due 20 days after Defendants’ file their opposition with a hearing to occur approximately two weeks thereafter, as contemplated under the current class certification schedule as entered by the Court on October 18, 2016. II. RELEVANT BACKGROUND On August 19, 2016, Plaintiffs and Defendants presented a class certification schedule to the Court at the Case Management Conference. (Declaration of Jeff Lombard in Support of \DOO\]O\ Defendants’ Ex Parte Application (“Lombard Decl.”) at 1] 2, Ex. A.) That schedule provided: 0 Deadline for Plaintiffs to file a motion for class certification: October 20, 2016; 1o 0 Opposition brief: November 30, 2016 11 0 Reply brief: December 20, 2016 12 0 Hearing on Class Certification Motion: January 9, 2017 13 (Id., Ex. A at 21:10-23.) However, as the Court expressly recognized, the schedule was 14 “tentative” and “subject to the depositions and production of documents of Mr. Gutierrez” 15 because Mr. Gutierrez’s deposition is “critical” to Defendants ability to defend against class 16 certification. (Id at 22:24-23z7.) Recognizing that unanticipated events might yet unfold, the 17 Court told the parties “[i]f we need to change the schedule, please don’t hesitate to contact the 18 Court.” (Id. at 2329-13.) 19 That same day, Mr. Gutierrez produced documents to Director Defendants, in response to 20 a subpoena served on September 3, 2015, nearly a year before. (Lombard Decl. at 111]4-5.) 21 Director Defendants had undertaken significant efforts, including filing a motion to compel, to 22 obtain documents from Mr. Gutierrez. (Id. at 114.) Mr. Gutierrez had produced some documents 23 earlier, but the production was incomplete. (Id) Like Mr. Gutierrez’s previous productions, the 24 supplemental production in August 2016 was also incomplete. (Id. at 1]5.) Again, Director 25 Defendants had to press Mr. Gutierrez to make a complete production. They sent a letter to Mr. 26 Gutierrez on August 26, 2016 identifying a number of deficiencies with the production. (Id. at 1] 27 5, Ex. B.) Even though Mr. Gutierrez’s counsel responded to the letter by telephone on 28 COOLEYLLP 2. ATTORNEYS AT LAW PALO ALTO MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431 September 2, 2016, he was not prepared to discuss the substantive deficiencies identified by Director Defendants. (Id. at 11 6.) Following the Labor Day weekend, Director Defendants again contacted Mr. Gutierrez asking him to address the substantive deficiencies with his production and to provide his availability for deposition on six separate dates in October. (Id.at1l 7, Ex. C.) Mr. Gutierrez did not respond. (Id. at 118, Ex. D.) Defendants reached out to Mr. Gutierrez’s counsel many times (including emails on September 13, 15 and 23 and telephone calls on September 16 and 23) about the deficient production and Mr. Gutierrez’s availability for deposition. ONOOOVON Director Defendants proposed three additional dates in October. Again, Mr. Gutierrez did not respond. (Id. at 1[ 9.) 1 As a last-ditch effort to avoid further motion practice, on September 27, 2016, Director 11 Defendants sent Mr. Gutierrez’s counsel a draft motion to compel informing Mr. Gutierrez that 12 without an answer to the outstanding questions regarding his production by the following day, 13 Director Defendants would file the motion and seek sanctions. (Id. at11 10, Ex. E.) ~Within two 14 hours of receiving the draft motion, Mr. Gutierrez’s counsel finally responded, indicating Director 15 Defendants had his “full attention” and responding to the matters addressed in the draft motion 16 and previous meet and confer communications. (Id. at11 11.) The next day, Director Defendants 17 sent an email memorializing the September 27 telephone call, asking Mr. Gutierrez to confirm in 18 writing the representations made by counsel, and, again, requesting that Mr. Gutierrez provide his 19 availability for deposition for dates in the last week of October and for the first two weeks of 20 November. (Id. at11 12, Ex. F.) Mr. Gutierrez produced additional documents on October 5, 21 2016, but never responded with his availability for deposition. (Id. at 1113.) 22 On October 6, 2016, Director Defendants again requested Mr. Gutierrez’s availability for 23 deposition and offered November 4 or 11 as two additional dates. (Id. at 11 14, Ex. G.) 24 Simultaneously, Director Defendants asked Plaintiffs and co-defense counsel for their availability 25 on November 4 or 11. (Id.1[ 15, Ex. H.) However, Plaintiffs were not available on November 4 26 and co-counsel for Mr. Pascarella was not available on November 11, but offered November 7 as 27 an alternative. (Id) Mr. Gutierrez never responded to this email. Hearing nothing, on October 28 12, Director Defendants notified Mr. Gutierrez and Plaintiffs they were no longer available on COOLEYLLP 3. ATTORNEYS AT LAW PALO ALTO MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE No. CIV534431 November 7. Plaintiffs only weighed in that they were available on November 7 after Director Defendants had already informed the group that the date did not work. (Id) Thereafter, Mr. Pascarella’s counsel took efforts to make themselves available on November 11. However, Mr. Gutierrez claimed he was not available on that date. And, even though Defendants had been trying to schedule a deposition for over a month, Mr. Gutierrez’s counsel, for the first time, stated that he would not agree to any deposition date “prior to reaching an agreement with the parties on the scope of Mr. Gutierrez’s deposition questioning.” (Id) for Mr. Gutierrez’s OKOOO\]O\ Director Defendants then proposed four additional dates deposition: November 29, December 1,December 6 and December 7. (Id) Mr. Gutierrez did not indicate 1 whether he was available on the proposed dates, but instead proposed November 17, a date 11 Director Defendants had never indicated they were available (and on which they were not 12 available). (Id) Given that Mr. Gutierrez refused to make himself available on a mutually 13 agreeable date that would work with the class certification schedule, Plaintiffs and Defendants 14 stipulated to modify the schedule on October 17, 2016. (Id at 11 16, Ex. I.) The parties’ 15 stipulation provided that Plaintiffs would file their opening brief on November 10, 2016, 16 Defendants would respond by December 21, 2016, and Plaintiffs’ would file any reply by January 17 10, 2017, with a hearing scheduled on January 31, 2017. (1d) Plaintiffs and Defendants also 18 acknowledged that the parties were available for Mr. Gutierrez’s deposition on November 29, 19 December 1, December 6 and December 7. (Id) Mr. Gutierrez, up to that point, had refused to 2o say whether he was available on any of those dates. The Court entered the stipulation on October 21 18, 2016. (Id) The following day, Plaintiffs notified Defendants that they would “not stipulate 22 to another continuance of the class certification schedule” to accommodate the scheduling of Mr. 23 Gutierrez’s deposition, even though no deposition had yet been scheduled. (Id. at 1117, Ex. J.) 24 On October 19, 2016, Director Defendants’ served Mr. Gutierrez with a deposition 25 subpoena for December 7, 2016. (Id at ‘11 18.) Six days later, on October 24, 2016, Mr. Gutierrez 26 responded for the first time that he was not available on December 7, 2016, even though this date 27 had first been proposed twelve days earlier on October 12. He also requested that (1) the 28 deposition be moved from Palo Alto to San Francisco and (2) that Director Defendants provide a COOLEY LLP 4. ATTORNEYS AT LAW PALO ALTO MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431 list of proposed topics for Mr. Gutierrez’s deposition. (Id. at 11 19.) Despite being under no obligation to do so, Defendants’ agreed to both of Mr. Gutierrez’s requests on the condition that he make himself available for deposition on one of the other proposed dates (November 29, December 1, or December 6). (Id. at 1120, Ex. K.) On November 3, 2016, Mr. Gutierrez agreed to make himself available for a half-day deposition on December 1, 2016. (Id. at 21-22, 1111 Ex. L.) Based on Mr. Gutierrez’s representation that he was available on December 1, 2016, Defendants served Mr. Gutierrez with an amended subpoena for December 1 and notified him \OOO\]O\ that a half-day deposition would be insufficient. (Id. at 11 23.) Director Defendants heard nothing from Mr. Gutierrez until November 17, 2016 — two 10 weeks later — when, Mr. Gutierrez notified Defendants that he “may now need to be'in New York ll on business on December lst,” and requested Director Defendants’ availability for the deposition 12 on November 29 and December 9. (Id at 1124, Ex. M.) Director Defendants notified Mr. 13 Gutierrez they were unavailable on both of those dates and proposed December 6, 2016 and 14 December 12, 2016 as alternatives. (Id) However, Mr. Gutierrez claimed that neither of those 15 dates worked. (Id) On November 22, 2016, Mr. Gutierrez served objections to Director 16 Defendants’ December 1, 2016 subpoena, claiming for the first time that his counsel was 17 unavailable on December 1. (Id at 1125, Ex. N.) Significantly, Mr. Gutierrez did not object on 18 the ground that he was unavailable. (Id) Thereafter, Director Defendants’ requested Mr. 19 Gutierrez’s availability for deposition on more than twenty dates between December 6, 2016 and 20 January 20, 2017. (Id at 1124, Ex. M.) Receiving no response, Director Defendants followed up 21 with Mr. Gutierrez’s counsel on November 28, 2016 reminding him that without a firm 22 commitment to proceed on one of the alternative dates, Defendants would proceed with the 23 deposition on December 1, 2016 and would move to compel if Mr. Gutierrez did not appear. (Id 24 at 11 26, Ex. 0.) The next day, Mr. Gutierrez notified Director Defendants that he was unavailable 25 on Dec-ember 1 and agreed to make himself available on December 16, 2016 but only for a half— 26 day. (Id) On November 30, 2016, Director Defendants served Mr. Gutierrez with a second 27 amended subpoena for deposition on December 16, 2016, making it clear they intended to take a 28 full deposition and Mr. Gutierrez could not limit it toa half day absent a protective order. (Id. at11 COOLEYLLP 5. ATTORNEYS AT LAW PALO A LTO MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431 27, Ex. P.) III. THE COURT SHOULD MODIFY THE CLASS CERTIFICATION SCHEDULE TO ACCOMODATE MR. GUTIERREZ’S DEPOSITION It is well-settled that California's courts have the “inherent power to grant continuances or stays under proper circumstances.” Ehrhart & Assocs. v. Superior Court, 185 Cal. App. 2d 1, 5 (1960); see also Cal. Canning Mach. Co. v. Superior Court, 3 Cal. 2d 606, 608 (1935) (trial courts have “inherent discretion” to continue any proceeding “in aid of orderly procedure”). This authority is codified in the California Code of Civil Procedure, which provides that “[e]very court \OOO\]O\ shall have the power .. .[t]o provide for the orderly conduct of proceedings before it[.]” Cal. Civ. Proc. Code §128(a)(3). 10 The Court has already recognized that Director Defendants “made a [ ] compelling case 11 that Mr. Gutierrez’s deposition is critical” and that “there’s [no] question that [Mr. Gutierrez’s] 12 deposition is first and foremost . ...to take place” before Defendants oppose class certification. 13 (Lombard Decl., Ex. A at 22:24-23:10.) Based on that determination, the Court concluded that 14 the class certification schedule was “tentative” and “subject to the deposition [ ] .. . of Mr. 15 Gutierrez, James Gutierrez” and told the parties “[i]f we need to change the schedule, please do 16 not hesitate to contact the Court.” (Id) With this understanding, the Plaintiffs and Defendants 17 agreed to “work in good faith to make adjustments” to the class certification should 18 “unanticipated events outside the parties’ control cause delays in either the production of 19 documents or the taking of [Mr. Gutierrez’s] deposition.” (Id. at 22:10-23, 23:11-23.) 20 Indeed, Defendants did everything they could to promptly schedule Mr. Gutierrez’s 21 deposition. Following Mr. Gutierrez’s deficient document production in August, Director 22 Defendants immediately attempted to engage him in meet and confer while simultaneously 23 requesting dates for his deposition. But Mr. Gutierrez did not respond. Following Mr. 24 Gutierrez’s early October production in the face of Director Defendants’ draft motion for 25 sanctions, Director Defendants again requested Mr. Gutierrez’s availability for deposition. 26 However, when Mr. Gutierrez would not agree to a mutually convenient date, Director 27 Defendants were forced to simply pick a date for the deposition (December 7, 2016) and 28 COOLEYLLP 6. ATTORNEYS AT LAW PALO ALTO MEMORANDUM l/S/O DEFENDANTS’ EX PARTE APPLICATION - CASE NO. CIV534431 subpoenaed Mr. Gutierrez. When Mr. Gutierrez notified Director Defendants that he was not available on December 7 but offered to be available on December 1, Director Defendants immediately subpoenaed him taking his counsel’s word that December 1 was available. Yet, just A days before the scheduled deposition, and nearly a month after Mr. Gutierrez said he was available on December 1, 2016, Mr. Gutierrez was unavailable as he was purportedly traveling to New York. (Mr. Gutierrez appears to have scheduled this trip while he was under subpoena for December \DOO\IO\UI 1, 2016.) Nevertheless, Director Defendants’ agreed to accommodate Mr. Gutierrez’s trip and changed the date of Mr. Gutierrez’s deposition to December 16, 2016. Simply put, Mr. Gutierrez has engaged in a course of conduct designed to delay the 10 deposition. Despite Defendants’ extraordinary efforts, this deposition has not occurred because 11 Mr. Gutierrez has refused to work cooperatively with counsel for Director Defendants to schedule 12 the deposition on a mutually convenient date. Indeed, Mr. Gutierrez either completely ignored 13 Director Defendants’ requests for his availability or offered to be available on dates he knew were 14 not available for Defendants’ counsel. In addition, Mr. Gutierrez apparently scheduled a business 15 trip to New York that conflicted with the December 1 deposition date causing a further delay. Mr. 16 Gutierrez’s own conduct has delayed his deposition by no less than three months. 17 Moreover, even if the deposition proceeds and is completed on December 16, that is two 18 business days before Defendants’ opposition to class certification is due. This does not leave 19 adequate time for Director Defendants’ to obtain a transcript from the court reporter (even on a 20 rush basis such requests take a couple of days) and incorporate relevant evidence into their 21 opposition brief. Additionally, given Mr. Gutierrez’s repeated insistence that the deposition be 22 limited to a half-day, there is a significant possibility that Defendants may be required to engage 23 in further motion practice to secure complete testimony from Mr. Gutierrez. As a result, 24 Defendants seek this ex parte relief to ensure that Mr. Gutierrez’s testimony can be incorporated 25 into their opposition brief. Specifically, Director Defendants seek an order (1) modifying the 26 class certification schedule such that Defendants’ opposition to Plaintiffs’ motion for class 27 certification would be due two weeks from the date on which Mr. Gutierrez’s deposition 28 concludes (and any motion practice regarding Mr. Gutierrez’s deposition, should it occur, be COOLEYLLP 7. ATTORNEYS AT LAW PALO ALTO MEMORANDUM I/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431 'I resolved) and (2) that Plaintiffs’reply be due 20 days afier Defendants’ file their opposition with to a hearing to occur approximately two weeks thereafter, in accordance with the current class ‘3‘ certification schedule as entered by the Court on October 18, 2016. 43- IV. CONCLUSION 5 For the foregoing reasons, Director Defendants respectfully request that the Court issue an ‘6’ order continuing the class certification schedule as requested herein. 7’ Dated: December 2, 2016 ~ ' ‘ - .7 COOLLhfi’xZLLP/ . ., ‘ > By: ‘ / ' .2H l Kan—"f” .9: ; itrrtwo Lonihard .. 3 . l ( 10 Altar); 3s for Defendants ”x David Strohm Tom Patterson, Aida AliL rez, Raul Vazquez, Dave Tomlmson Carl Pascarella Comer LLP 8' Anvkutb A1 LAw “"‘ "'"‘ MEMORANDUM l/S/O DEFENDANTS’ Ex PARTE APPLICATION - CASE NO. CIV534431