Joanne Siegel et al v. Warner Bros Entertainment Inc et al

Filing 281

SEALED DOCUMENT-DECLARATION of Marc Toberoff, Esq. in opposition to Defendants' Ex Parte Application EX PARTE APPLICATION for Order for Setting Rebuttal Expert Report Date for January 14, 2008; Declaration of Franklin Johnson; Declaration of Anjani Mandavia; Declaration of Michael Bergman 279 . (Attachments: # 1 Exhibit Exhibits A-P# 2 Exhibit Exhibits Q-DD)(Toberoff, Marc) Additional attachment(s) added on 5/22/2008 (mrgo, ). Modified on 5/22/2008 (mrgo, ).

Joanne Siegel et al v. Warner Bros Entertainment Inc et al

Doc. 281

Case 2:04-cv-08400-SGL-RZ

Document 281

Filed 12/10/2007

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1 Marc Toberoff (CA State Bar No. 188547)

2 LAW OFFICES OF MARC TOBEROFF, PLC 3 Los Angeles, CA 90067

Nicholas C. Williamson (CA State Bar No. 231124) 2049 Century Park East, Suite 2720 Telephone: [phone] Joanne Siegel and Laura Siegel Larson

4 Facsimile: [phone]

5 Attorneys for Plaintiffs and Counterclaim Defendants 6 7 8 9

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

JOANNE SIEGEL, an individual; and Case Nos. CV 04-8400 SGL (RZx) CV 04-8776 SGL (RZx) 10 LAURA SIEGEL LARSON, an [Consolidated for Discovery Only] 11 individual, Honorable Stephen G. Larson, U.S.D.J. 12 Plaintiffs, DECLARATION OF MARC TOBEROFF IN OPPOSITION TO vs. 13 DEFENDANTS' EX PARTE APPLICATION TO SET 14 WARNER BROS. REBUTTAL EXPERT REPORT DATE FOR JANUARY 14, 2008 ENTERTAINMENT INC., a 15 corporation; TIME WARNER INC., a 16 corporation; DC COMICS, a general 17 partnership; and DOES 1-10,
18 19 20 21 22 23

Defendants DC COMICS, Counterclaimant vs. LAURA SIEGEL LARSON, an

24 JOANNE SIEGEL, an individual; and 25 individual, 26 27 28 1
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Counterclaim Defendants.

Declaration of Marc Toberoff in Opposition to Defendants' Ex Parte Application

Dockets.Justia.com

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DECLARATION OF MARC TOBEROFF I, Marc Toberoff, declare as follows: 1. I am an attorney at the Law Offices of Marc Toberoff, PLC, counsel

4 of record for plaintiffs Laura Siegel Larson and Joanne Siegel. I am a member 5 in good standing of the State Bar of California and submit this declaration in 6 opposition to Defendants' Ex Parte Application to Set Rebuttal Expert Date for 7 January 14, 2008. I have personal knowledge of the facts set forth in this 8 declaration and, if called as a witness, could and would testify competently to 9 such facts under oath. 10

2.

On May 13, 2005, Plaintiffs served Plaintiffs' Request for

11 Production of Documents and Things to Defendant Warner Bros. Entertainment, 12 Inc., Set One, relating to Plaintiffs' claims and damages. On May 15, 2005, 13 Plaintiffs served Plaintiffs' Request for Production of Documents and Things to 14 Defendant DC Comics, Set One, relating to Plaintiffs' claims and damages. 15 Plaintiffs thereafter served Plaintiffs' Second Set of Requests for Production of 16 Documents and Things to Defendant DC Comics on October 17, 2006 and 17 Plaintiffs' Fourth Set of Requests for Production of Documents and Things to 18 Defendants Warner Bros. Entertainment Inc., Warner Bros. Television Inc., 19 Time Warner Inc. and DC Comics on October 18, 2006. 20

3.

Attached hereto as Exhibit A is a true and correct copy of a

21 Stipulation and Order re: Expert Discovery Schedule, entered by the Court on 22 November 17, 2006. 23

4.

On January 12, 2007, Plaintiffs' financial expert Steven Sills

24 ("Sills") timely submitted to Defendants a 14 page expert report (including 25 appendices) pursuant to F.R.C.P. 26. Attached hereto as Exhibit B is a true and 26 correct copy of Mr. Sills' expert report, dated January 12, 2007. 27 28 2
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Declaration of Marc Toberoff in Opposition to Defendants' Ex Parte Application

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5.

Attached hereto as Exhibit C is a true and correct copy of the initial

2 rebuttal report of Defendants' financial expert, Franklin Johnson, dated February 3 9, 2007. 4

6.

Attached hereto as Exhibit D is a true and correct copy of the

5 Stipulation re: Scheduling Order and Order Thereon, entered by the Court on 6 March 20, 2007. 7

7.

Plaintiffs submitted a noticed motion to compel outstanding

8 discovery on April 23, 2007. A hearing was held before Magistrate Zarefsky on 9 May 14, 2007. On August 8, 2007, this Court withdrew the reference to 10 Magistrate Zarefsky. On August 13, 2007, this Court heard further argument 11 regarding Plaintiffs' outstanding motions to compel, and issued an order on that 12 date, directing a damages-related audit of Defendants by Mr. Sills. Attached 13 hereto as Exhibit E is a true and correct copy of the Court's August 13, 2007 14 Order. 15

8.

After Defendants refused to stipulate to reasonably extend the time

16 for Mr. Sills to conduct a bi-coastal audit, Plaintiffs filed an ex parte application 17 on September 14, 2007, seeking such extension. Defendants vigorously opposed 18 that application in their opposition filed on September 17, 2007 and stressed the 19 looming pre-trial schedule and that thirty days was sufficient time. At the 20 September 17, 2007 hearing on the parties' cross motions for summary 21 judgment, arguments on Plaintiffs' ex parte application were also heard and the 22 Court granted Mr. Sills a short extension. 23

9. 10.

At no point in the parties' briefing prior to the September 17, 2007 Attached hereto as Exhibit F are true and correct copies of the

24 hearing did the Defendants ever raise the issue of expert depositions or reports. 25

26 relevant excerpts from the transcript of the September 17, 2007 hearing. 27 28 3
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Declaration of Marc Toberoff in Opposition to Defendants' Ex Parte Application

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11.

Attached hereto as Exhibit G is a true and correct copy of the

2 Court's Order re: Outstanding Discovery Matters, entered on September 17, 3 2007. 4

12. 13. 14. 15.

Attached hereto as Exhibit H is a true and correct copy of an e-mail Attached hereto as Exhibit I is a true and correct copy of an e-mail Attached hereto as Exhibit J is a true and correct copy of an e-mail Attached hereto as Exhibit K is a true and correct copy of an e-mail

5 dated September 28, 2007 from Steven Sills to Amie Doft. 6

7 dated October 3, 2007 from Amie Doft to Steven Sills. 8

9 dated October 4, 2007 from Steven Sills to Amie Doft. 10

11 dated October 4, 2007 written by Steven Sills forwarded from me to James 12 Weinberger. 13

16. 17.

Attached hereto as Exhibit L is a true and correct copy of a letter Attached hereto as Exhibit M is a true and correct copy of an

14 dated October 4, 2007 from me to Michael Bergman and James Weinberger. 15

16 excerpt from Warner Bros.' Opposition to Plaintiffs' Ex Parte Application for an 17 Order Compelling Defendants' Compliance, filed on October 5, 2007. 18

18. 19. 20. 21. 22.

Attached hereto as Exhibit N is a true and correct copy of a letter Attached hereto as Exhibit O is a true and correct copy of a letter Attached hereto as Exhibit P is a true and correct copy of an e-mail Attached hereto as Exhibit Q is a true and correct copy of an e-mail Attached hereto as Exhibit R is a true and correct copy of an e-mail

19 dated October 8, 2007 from James Weinberger to me. 20

21 dated October 8, 2007 from me to James Weinberger. 22

23 dated October 8, 2007 from Warner Bros.' Eric Birth to Steven Sills. 24

25 dated October 8, 2007 from Steven Sills to Eric Birth. 26

27 dated October 9, 2007 from Eric Birth to Steven Sills. 28 4
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23. 24.

Attached hereto as Exhibit S is a true and correct copy of an e-mail Attached hereto as Exhibit T is a true and correct copy of the Order

2 dated October 22, 2007 from Warner Bros.' Amie Doft to Steven Sills. 3

4 Denying Plaintiffs' October 4, 2007, Ex Parte Application (in Chambers), dated 5 October 23, 2007. 6

25. 26. 27. 28.

Attached hereto as Exhibit U is a true and copy of an e-mail dated Attached hereto as Exhibit V is a true and correct copy of a letter Attached hereto as Exhibit W is a true and correct copy of a letter On November 9, 2007, I discussed with DC's counsel resolving

7 November 2, 2007 from Steven Sills to Amie Doft. 8

9 dated November 5, 2007 from me to Michael Bergman. 10

11 dated November 7, 2007 from Michael Bergman to me. 12

13 whether WB's film, television and merchandising statements and payments to 14 DC were reflected in the management summaries provided by DC (i.e., "Blue 15 Books"). 16

29. 30. 31. 32.

Attached hereto as Exhibit X is a true and correct copy of an e-mail Attached hereto as Exhibit Y is a true and correct copy of an e-mail Attached hereto as Exhibit Z is a true and correct copy of the Attached hereto as Exhibit AA is a true and correct copy of the

17 dated November 9, 2007 from me to James Weinberger. 18

19 dated November 13, 2007 from James Weinberger to me. 20

21 Stipulation re: Scheduling Order, filed by the parties on November 15, 2007. 22

23 Court's Order re: Scheduling of Case No. CV04-8400-SGL (RZx), entered 24 November 16, 2007. 25

33. 34.

Attached hereto as Exhibit BB is a true and correct copy of a letter On November 23, 2007, at approximately 6:00 a.m., a wildfire

26 dated November 20, 2007 from me to Michael Bergman. 27

28 completely destroyed my Malibu home. I was forced to immediately flee the 5
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Declaration of Marc Toberoff in Opposition to Defendants' Ex Parte Application

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1 premises with my wife and three children without our belongings. The fire 2 completely destroyed our house and all of its contents. I will need to rebuild my 3 home from scratch. 4

35.

On Monday, November 26, 2007 I was finally able to visit my

5 property. While there I was interviewed by a local news team from Channel 4 6 and a reporter from the Los Angeles Times. A video clip of this interview which 7 shows the destruction can be found at http://video.knbc.com/player/?id=188740. 8

Attached hereto as Exhibit CC are true and correct copies of the November 27,

9 2007 Los Angeles Times (my destroyed home is on the cover) and the Los 10 Angeles Daily News articles discussing the destruction of my home. 11

36.

On November 26, 2007, I contacted Defendants' counsel to inform

12 them of the destruction and to request a six-week continuance of the trial date in 13 light of this disaster. After initially agreeing to this extension, Defendants soon 14 backtracked, refusing to agree to a continuance unless Plaintiffs granted them 15 discovery concessions. 16

37.

On December 4, 2007, I once again met-and-conferred

17 telephonically with Defendants' counsel regarding the six-week continuance of 18 the trial schedule. Therein, Defendants expressly conditioned their assent to 19 such a continuance on Plaintiffs conceding double the time for their expert to 20 submit a rebuttal report and agreeing to Sills' deposition, long after the March 21 30, 2007 expert deposition cut-off. Notwithstanding Defendants' improper 22 attempt to leverage my misfortune, I stated that Plaintiffs would agree as to both 23 issues regarding the parties' financial experts, if Defendants simply resolved a 24 handful of remaining gaps in the financial information requested but not 25 received during Sills' audit in order to ensure that both parties had sufficiently 26 accurate information to conduct a constructive settlement mediation. 27 Defendants flatly refused this request. 28 6
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Declaration of Marc Toberoff in Opposition to Defendants' Ex Parte Application

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38.

On December 4, 2007, Anjani Mandavia informed me by telephone

2 that Defendants would stipulate to an extension of the trial date due to the fire, 3 but would apply ex parte regarding the time to serve their expert's rebuttal 4 report. I reiterated at this time that such outstanding discovery issues regarding 5 the parties' financial experts could readily be resolved by counsel. 6

39.

On December 6, 2007, before service of Defendants' application,

7 Plaintiffs sent a letter to Defendants outlining their position and again 8 advocating informal resolution of open issues regarding the parties' financial 9 experts. Attached hereto as Exhibit DD is a true and correct copy of a letter 10 dated December 6, 2007 from me to Michael Bergman and Anjani Mandavia. 11

I declare under penalty of perjury of the laws of the United States of Executed on December 10, 2007 in Los Angeles, California.

12 America that the foregoing is true and correct. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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___________/s/_______________ Marc Toberoff

Declaration of Marc Toberoff in Opposition to Defendants' Ex Parte Application