Barbara Waldrup v. Countrywide Financial Corporation et al

Filing 413

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: PLAINTIFFS EX PARTE APPLICATION TO STAY ORDER COMPELLING DEPOSITIONS OF ABSENT CLASS MEMBERS 407 IS DENIED. (See document for specifics). (lc) .Modified on 8/19/2019 .(lc).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. 
Title

CIVIL MINUTES – GENERAL
‘O’
2:13-CV-08833-CAS-AGRx
Date  August 19, 2019
WALDRUP v. COUNTRYWIDE FINANCIAL CORP; ET AL.

Present: The Honorable 
Catherine Jeang 
Deputy Clerk 

CHRISTINA A. SNYDER 
Not Present 
Court Reporter / Recorder 

N/A 
Tape No. 

Attorneys Present for Plaintiffs: 

Attorneys Present for Defendants: 

Not Present 

Not Present 

Proceedings:  

(IN CHAMBERS) - PLAINTIFFS’ EX PARTE APPLICATION TO
STAY ORDER COMPELLING DEPOSITIONS OF ABSENT
CLASS MEMBERS (ECF No. 407, filed on August 14, 2019)

I.

INTRODUCTION & BACKGROUND

Barbara Waldrup et al. initiated this class action case against defendants
Countrywide Financial Corp., Countrywide Home Loans, Bank of America, N.A., Bank of
America Corp., Landsafe, Inc., and Land Safe Appraisal Services, Inc. on November 27,
2013. See Compl., ECF No. 1. Plaintiffs’ operative Third Amended Complaint (“TAC”)
alleges (1) violations of California’s Unfair Competition Law (Cal. Bus. & Prof. Code
§ 17200), (2) violations of the Racketeer Influenced and Corrupt Organizations Act (18
U.S.C. § 1962), (3) fraud, and (4) unjust enrichment, all arising out of defendants’ roles
performing and soliciting real estate appraisals.
On July 12, 2019, the Honorable Alicia Rosenberg, U.S. Magistrate Judge (“the
Magistrate Judge”), ordered plaintiffs to make five absent class members available for
deposition, and denied plaintiffs’ request for a stay of that order. See ECF No. 390 (“July
12 Order”). Plaintiffs did not appeal the July 12 Order to this Court. Instead, plaintiffs
requested a further teleconference with the Magistrate Judge to seek reconsideration of her
decision. That teleconference took place on July 26, 2019. See Minutes of Discovery
Teleconference, ECF No. 395. At the July 26, 2019 teleconference, the Magistrate Judge
ordered defendants to produce documents related to the requested depositions for the
Magistrate Judge’s review. Id. Defendants did so, and on August 7, 2019, the Magistrate
Judge issued an order concluding that the documents did not support reconsideration of the
July 12 Order. See ECF No. 402 (“August 7 Order”). The August 7 Order further provided
that, “pursuant to the Order dated July 12, 2019,” each of the five absent class members

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. 
Title

CIVIL MINUTES – GENERAL
‘O’
2:13-CV-08833-CAS-AGRx
Date  August 19, 2019
WALDRUP v. COUNTRYWIDE FINANCIAL CORP; ET AL.

“shall appear for deposition for no more than two hours at a mutually agreeable date, time,
and location.” Id. On August 9, 2019, the Magistrate Judge held another teleconference
and denied plaintiffs’ further request to reconsider her denial of their request to stay the
July 12 Order. See ECF No. 405 (“August 9 Order”).
On August 14, 2019, plaintiffs filed the instant ex parte application to stay the
depositions pending review of her order. See ECF No. 407 (“Application” or “App.”). On
August 16, 2019, defendants filed an opposition. See ECF No. 411 (“Opposition” or
“Opp.”). Having considered the parties’ arguments, the Court finds and concludes that
plaintiffs’ ex parte application should be DENIED.
II.

LEGAL STANDARD

“Ex parte applications are permitted solely for extraordinary relief. Whether to
grant them is within the discretion of the district court.” Thomas v. Thomas Wylde, LLC,
No. 17-CV-04158-JAK (PJWx), 2017 WL 8236279, at *1 (C.D. Cal. June 7, 2017). To
justify such relief, an applicant must present evidence showing that it “will be irreparably
prejudiced if the underlying motion is heard according to regular noticed motion
procedures.” See Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 492
(C.D. Cal. 1995). The applicant must also demonstrate that he or she is “without fault in
creating the crisis that requires ex parte relief, or that the crisis occurred as a result of
excusable neglect.” Id.
III.

DISCUSSION

Plaintiffs’ Application seeks emergency relief from the Magistrate Judge’s order
“granting Deposition of Five Absent Class Members.” App. at 1. Plaintiffs characterize
this request as relief from the August 9 Order denying reconsideration. But in substance,
the Application seeks relief from the July 12 Order, which is the one that compelled
plaintiffs to make the five absent class members available for deposition. Federal Rule of
Civil Procedure 72(a) provides that a party must “serve and file objections to” a magistrate
judge’s order “within 14 days after being served with a copy.” Fed. R. Civ. Proc. 72(a).
Motions filed with the Magistrate Judge to reconsider an order do not toll the 14 day period
to file objections. See IV Sols., Inc. v. Connecticut Gen. Life Ins. Co., No. CV 13-9026GW(AJWX), 2014 WL 12613268, at *2 (C.D. Cal. Sept. 4, 2014) (concluding that the 14
day period to challenge the underlying discovery order was not tolled by the filing of a
reconsideration motion); Obesity Research Inst., LLC v. Fiber Research Int’l, LLC, No.
15-CV-595-BAS (MDD), 2017 WL 3335736, at *3 (S.D. Cal. Aug. 4, 2017) (same). The

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. 
Title

CIVIL MINUTES – GENERAL
‘O’
2:13-CV-08833-CAS-AGRx
Date  August 19, 2019
WALDRUP v. COUNTRYWIDE FINANCIAL CORP; ET AL.

deadline for plaintiffs to challenge the July 12 Order accordingly expired on July 26, 2019,
and the Application—which effectively seeks relief from the July 12 Order—is therefore
denied as untimely.1
Plaintiffs acknowledge that “a party normally has [14] days to file” objections
pursuant to Rule 72(a), but contend that emergency review by this Court is nevertheless
necessary because the Magistrate Judge “refused to issue a stay” of her July 12 Order
compelling the depositions. See App. at 2. This ignores that no objections were filed
within fourteen days of the July 12 Order. Plaintiffs provide no reason why they did not
file objections to the July 12 Order while pursuing a stay of that order simultaneously
within the prescribed 14 day period. See, e.g., Fourth Age Ltd. v. Warner Bros. Digital
Distribution Inc, No. CV-12-9912-ABC-SJHX, 2014 WL 12587039, at *2 (C.D. Cal. May
22, 2014) (concluding that the party seeking the district court’s review of the magistrate
judge’s order and a stay of that same order in same motion should have instead sought a
stay separately while the motion for review was pending) (cited in App. at 2). And while
this Court could review the Magistrate Judge’s August 9 Order denying plaintiffs’ request
to stay the July 12 Order pending review, any relief the Court could grant from that review

1

The Court is also not persuaded that the Magistrate Judge’s July 12, August 7, and
August 9 orders are clearly erroneous or contrary to law. Plaintiffs contend that defendants
do not carry their burden to establish that the requested depositions are necessary and not
unduly burdensome. See App. at 1 (citing Clark v. Universal Builders, Inc., 501 F.2d 324,
341 (7th Cir. 1974)); see also Negrete v. Allianz Life Ins. Co. of N. Am., No. CV 05-6838
CAS, 2008 WL 8116992, at *2 (C.D. Cal. June 30, 2008) (“To depose absent class
members,” this Court has concluded that “a party must show that discovery is both
necessary and for a purpose other than taking undue advantage of class members.”)
(citations omitted). According to plaintiffs, deposing the absent class members on issues
related to their alleged improper solicitation of fraudulent appraisals “cannot possibly raise
questions that predominate throughout an entire class of approximately 2.4 million
members,” rendering the depositions “needless” “harass[ment]” that “fail[s] to address any
of the claims or defenses” at issue. Id. at 1-2. The Magistrate Judge’s reasoning rejecting
this argument—that the five depositions do not appear to be unduly burdensome in the
context of the case, that the discovery is reasonably necessary to support defendants’
denials, and that there is no indication that the requested discovery could be obtained from
the named plaintiffs or any other source, among other reasons—is neither arbitrary nor
contrary to law. See July 12 Order at 3-5.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. 
Title

CIVIL MINUTES – GENERAL
‘O’
2:13-CV-08833-CAS-AGRx
Date  August 19, 2019
WALDRUP v. COUNTRYWIDE FINANCIAL CORP; ET AL.

would be illusory, since, as noted above, the Court cannot at this juncture review the
underlying July 12 Order. Accordingly, the ex parte relief here requested is not warranted.
IV.

CONCLUSION
In accordance with the foregoing, the Court DENIES plaintiffs’ ex parte application.
IT IS SO ORDERED.
Initials of Preparer 

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