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

Filing 283

OBJECTIONS in Support of Opposition to re: 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 and Declaration of Nicholas Williamson in support thereof filed by Plaintiff Laura Siegel Larson. (Toberoff, Marc)

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

Doc. 283

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

Document 283

Filed 12/11/2007

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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, PLAINTIFFS' OBJECTION TO REPLY IN SUPPORT OF 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 DECLARATION OF NICHOLAS C. WILLIAMSON IN SUPPORT 16 corporation; DC COMICS, a general THEREOF 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

Counterclaim Defendants.

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Plaintiffs' Objection to Reply in Support of Defendants' Ex Parte Application

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Plaintiffs Joanne Siegel and Laura Siegel Larson hereby object to the

2 Reply in Support of Defendants' Ex Parte Application to Set Rebuttal Expert 3 Report Date for February 14, 2008, filed on December 11, 2007 ("Ex Parte 4 Reply"). The Ex Parte Reply was purportedly in reply to Plaintiffs' Opposition 5 to Defendants' Ex Parte Application, filed on December 10, 2007. To begin 6 with, no Local Rule or Federal Rule of Civil Procedure permits the filing of a 7 reply to an ex parte application. Section 6 of Judge Larson's Standing Order, in 8 particular, refers to "moving, opposition, or notice of non-opposition" papers, 9 but makes no reference to the filing of any reply papers. Finally, the filing of a 10 reply works against the purposes of ex parte applications, which necessarily 11 involve a shortened time for the preparation of opposition papers and typically 12 (as in this case) involve a shortened time for the Court to render its decision. To 13 permit a reply in an ex parte application, would advantage a party that ignores 14 the local rules. 15

Defendants' improper reply nonetheless requires a response. Plaintiffs

16 timely filed and served their ex parte opposition, as General Order No. 07-08 17 establishes that electronically-filed documents are deemed served as of the 18 issuance of the Notice of Electronic filing, which occurred at 12:06 a.m. on 19 Friday, December 7, 2007, and the Court's clerk confirmed that any opposition 20 to the ex parte would be due by 12:00 p.m. on Monday, December 10, 2007. 21 Plaintiffs' opposition was duly filed by that time. See Declaration of Nicholas 22 C. Williamson In Opposition To Defendants' Ex Parte Application To Set 23 Rebuttal Expert Report Date For January 14, 2008 ("Williamson Decl."), at ¶¶ 24 5-7, Exhibits A-B. 25

Defendants' contention that they did not condition their agreement to a

26 trial continuance on Plaintiffs' agreement to the extension of the time for their 27 expert to complete his rebuttal report and on Mr. Sills' deposition is completely 28 false and disingenuous. During the December 4, 2007, conversation between 1
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1 Mr. Toberoff and Mr. Bergman, Mr. Bergman repeatedly refused to agree to an 2 extension unless these discovery concessions were included. See Williamson 3 Decl., ¶ 2. When it became clear that Defendants would not succeed in 4 leveraging Plaintiffs' counsel's misfortune, Defendants subsequently caved and 5 agreed to a continuance. See Declaration Of Marc Toberoff In Opposition To 6 Defendants' Ex Parte Application To Set Rebuttal Expert Report Date For 7 January 14, 2008 ("Toberoff Decl."), ¶ 37; Williamson Decl., ¶ 3. 8

Defendants' contention that Mr. Sills' initial report "was simply a

9 `placeholder' report devoid of any substantive conclusions" is manifestly at odds 10 with the report itself. In the report, Mr. Sills repeatedly drew conclusions based 11 on the documentation provided to that point by Defendants. See Toberoff Decl., 12 Ex. B, at p. 3 [setting forth documents provided], 4-10 [setting forth analysis of 13 such documents], and 10 [quoted portion]. Defendants should not now be heard 14 to complain or demand discovery concessions based on Mr. Sills' original or 15 supplemental expert report, when any incompleteness in Mr. Sills' expert report 16 was solely caused by Defendants' intentional stonewalling ­ the subject of 17 Plaintiffs' numerous motions to compel. 18

Lastly, the reason that Plaintiffs addressed in their opposition the

19 remaining gaps in the financial documentation provided by Defendants was 20 because these issues are intimately tied to the expert discovery deadlines 21 addressed by Defendants' application. For instance, Plaintiffs are entitled to 22 receive Defendants' missing financial documentation prior to the deposition of 23 Defendants' financial expert. Given that Defendants' application raised issues 24 of expert discovery regarding damages with an eye to the parties' upcoming 25 settlement mediation, it would be proper and constructive for the Court to 26 address remaining expert issues together. 27 28 2
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1 Dated: December 11, 2007 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICES OF MARC TOBEROFF, PLC By: / /s/ Marc Toberoff /

Attorneys for Plaintiffs and Counterclaim Defendants Joanne Siegel and Laura Siegel Larson

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DECLARATION OF NICHOLAS C. WILLIAMSON I, Nicholas Williamson, 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 ("Plaintiffs"). I 5 am a member in good standing of the State Bar of California and submit this 6 declaration in opposition to Defendants' Ex Parte Application to Set Rebuttal 7 Expert Date for January 14, 2008 ("Application"). I have personal knowledge of 8 the facts set forth in this declaration and, if called as a witness, could and would 9 testify competently to such facts under oath. 10

2.

On December 4, 2007, Mr. Toberoff and I met-and-conferred

11 telephonically with Defendants' counsel Michael Bergman and Anjani 12 Mandavia regarding a six-week continuance of the trial schedule due to the 13 misfortune of Mr. Toberoff's home burning down. I took detailed notes of this 14 conference. During this conversation, and in response to a direct question from 15 Mr. Toberoff, Mr. Bergman expressly conditioned Defendants' assent to the 16 requested continuance on Plaintiffs agreeing to an extension for Defendants' 17 financial expert to serve his rebuttal report and to a subsequent deposition of 18 Plaintiffs' expert, Steven Sills. Mr. Toberoff objected that these were separate 19 issues that could be worked out, but that it was improper for Defendants to tie 20 discovery demands to a continuance based on personal disaster. Mr. Bergman 21 indicated that if Plaintiffs did not agree to his discovery demands, Plaintiffs 22 would need to move ex parte for a continuance. 23

3.

Later that day, Anjani Mandavia informed Mr. Toberoff by

24 telephone that Defendants had reconsidered and would stipulate to a trial 25 continuance, but would apply ex parte as to their expert's rebuttal report. 26

4.

I attended the deposition of third party Bryan Singer on Thursday,

27 December 6, 2007. In attendance at that deposition were Defendants' counsel 28 Michael Bergman and Adam Hagen. At no time during the seven hours of Mr. 4
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Declaration of Nicholas C. Williamson

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1 Singer's deposition did Defendants' counsel inform me or plaintiffs' counsel 2 Marc Toberoff that they had filed electronically an ex parte application that 3 same day. Defendants also did not serve Plaintiffs with a hard copy that day. 4

5.

Plaintiffs were solely served electronically with Defendants'

5 Application to Set Rebuttal Expert Report Date at 12:06 a.m. on Friday, 6 December 7, 2007. Attached hereto as Exhibit A is a true and correct copy of 7 the electronic notice from the Court's ECF website I received at 12:06 a.m. on 8 Friday, December 7. 9

6.

Upon receiving this notice on my arrival into the office on the

10 morning of Friday, December 7, 2007, I called the Court's clerk, James Holmes, 11 to notify the Court that Plaintiffs would be opposing Defendants' ex parte 12 application and to clarify when Plaintiffs' opposition would be due, since 13 Plaintiffs had received notice only that morning. Mr. Holmes placed me on 14 hold, and upon returning to the line, informed me that, after consulting with the 15 law clerk, Plaintiffs' opposition would need to be filed electronically by 12:00 16 p.m. on Monday, December 10, 2007. 17

7.

Both Plaintiffs' opposition to Defendants' ex parte application and

18 the declaration in support thereof were filed by 12:00 p.m. on December 10, 19 2007. Attached hereto as Exhibit B are true and correct copies of the 20 confirmation pages for these filings. 21 22

I declare under penalty of perjury of the laws of the United States of Executed on December 11, 2007 in Los Angeles, California. / /s/ Nicholas C. Williamson /

23 America that the foregoing is true and correct. 24 25 26 27 28 5
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Declaration of Nicholas C. Williamson

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EXHIBIT A
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Nicholas Williamson
From: Sent: To: [e-mail] Friday, December 07, 2007 12:06 AM [e-mail]

Subject: Summary of ECF Activity

Activity has occurred in the following cases: 2:04-cv-08400-SGL-RZ Joanne Siegel et al v. Warner Bros Entertainment Inc et al Order 278 Docket Text: ORDER by Judge Stephen G. Larson re Stipulation to Reschedule Deposition of 3rd party Bryan Singer [277]. IT IS HEREBY ORDERED that the deposition of Bryan Singer shall be held on 12/6/07, commencing promptly at 12:30 pm. (mrgo) 2:04-cv-08400-SGL-RZ Joanne Siegel et al v. Warner Bros Entertainment Inc et al Ex Parte Application for Order 279 Docket Text: 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 filed by Defendants Warner Bros Entertainment Inc, Time Warner Inc, DC Comics. (Attachments: # (1) Exhibit to Michael Bergman's Declaration)(Mandavia, Anjani)

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EXHIBIT B
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