Bryan Pringle v. William Adams Jr et al

Filing 144

MEMORANDUM in Opposition to EX PARTE APPLICATION for Protective Order for Postponing Depositions 141 filed by Plaintiff Bryan Pringle. (Hampton, George)

1 Dean A. Dickie (appearing Pro Hac Vice)
[e-mail]
2 Kathleen E. Koppenhoefer (appearing Pro Hac Vice)
[e-mail]
3 MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
225 West Washington Street, Suite 2600
4 Chicago, IL 60606
Telephone: [phone]
5 Facsimile: 312.460.4288
6 Ira Gould (appearing Pro Hac Vice)
[e-mail]
7 Ryan L. Greely (appearing Pro Hac Vice)
[e-mail]
8 GOULD LAW GROUP
120 North LaSalle Street, Suite 2750
9 Chicago, IL 60602
Telephone: [phone]
10 Facsimile: 312.726.1328
11 George L. Hampton IV (State Bar No. 144433)
[e-mail]
12 Colin C. Holley (State Bar No. 191999)
[e-mail]
13 HAMPTONHOLLEY LLP
2101 East Coast Highway, Suite 260
14 Corona del Mar, California 92625
Telephone: [phone]
15 Facsimile: 949.718.4580
16 Attorneys for Plaintiff
BRYAN PRINGLE
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION
)
)
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Plaintiff,
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v.
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WILLIAM ADAMS, JR.; STACY
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FERGUSON; ALLAN PINEDA; and
)
JAIME GOMEZ, all individually and
collectively as the music group The Black )
)
Eyed Peas, et al.,
)
)
Defendants.
)

21 BRYAN PRINGLE, an individual,

Case No. SACV 10-1656 JST(RZx)

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PLAINTIFF’S RESPONSE TO EX
PARTE APPLICATION FOR
PROTECTIVE ORDER TO
POSTPONE THE DEPOSITIONS
OF THE BLACK EYED PEAS
MEMBERS

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Defendants, William Adams, Stacy Ferguson, Allan Pineda, and Jaime Gomez

2 (collectively “The Black Eyed Peas Defendants”), seek a protective order postponing
3 their respective depositions in this matter. They have failed to submit the required
4 materials for their ex parte request, however, and have nonetheless fallen woefully
5 short of establishing that they are entitled to ex parte relief. Plaintiff’s counsel
6 therefore opposes Defendants’ request and asks this Honorable Court to sanction the
7 Black Eyed Peas Defendants for their objectionable but unfortunately predictable
8 conduct.
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BACKGROUND
The Black Eyed Peas Defendants seek an untimely, improper and bad faith ex

11 parte protective order to disrupt their confirmed depositions in this matter.
12 Defendants do so for no other purpose than to derail Plaintiffs’ Motion to Compel 713 hour depositions of the Black Eyed Peas Defendants in the unrelated Batts v. William
14 Adams, et al., CV 10-8123 JFW (RZx) matter (“Batts case”). See a true and accurate
15 copy of Plaintiffs’ Motion to Compel in the Batts case attached hereto as Exhibit A.
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The Black Eyed Peas Defendants’ ex parte request contains numerous

17 misrepresentations and simply makes no sense. On June 3, 2011, the Black Eyes
18 Peas Defendants were confirmed as being available for their depositions on July 22,
19 25, 26 and 27. Those deposition dates were confirmed on June 13, 2011 in this
20 matter. This was only after months of dilatory and obstructionist maneuvering on
21 their counsels’ part.
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Plaintiffs first requested the depositions of the Black Eyed Peas Defendants in

23 this matter in January, subsequently noticed those depositions to proceed in May, and
24 were only provided in June the four now-confirmed dates within which to proceed
25 with their depositions in both the Batts and Pringle cases. The Black Eyed Peas
26 Defendants unilaterally imposed the additional requirement that these depositions
27 would be limited to one 7-hour deposition for each individual on one day for both
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1 cases. The Plaintiffs in the Batts case thereafter filed a motion to compel 7-hour
2 depositions of those individuals.
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Plaintiffs’ counsel in both the Batts and Pringle cases have unequivocally and

4 repeatedly stated that the depositions of the Black Eyed Peas Defendants will not be
5 proceeding in the Batts matter on any previously noticed dates pending ruling on the
6 aforementioned motion to compel in that matter. There exist no conflicting
7 depositions of the Black Eyed Peas Defendants between the Pringle and Batts cases
8 despite Defendants’ representations to the contrary. Defendants have waited until
9 the 11th hour to move ex parte for a protective order to prevent the depositions from
10 proceeding in this matter on the dates that they already confirmed. Their request
11 falls far short of the requirements for ex parte relief and their continued efforts to
12 obstruct discovery are sanctionable. Plaintiff therefore requests that Defendants’ ex
13 parte application be denied and that sanctions be awarded against Defendants for the
14 fees, costs and expenses incurred by Plaintiffs in responding to this improper
15 application.
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FACTS PERTINENT TO PLAINTIFF’S RESPONSE
Plaintiff has been requesting the Black Eyed Peas Defendants’ availability for

18 seven hour depositions since January 28, 2011. Declaration of Dean A. Dickie in
19 Support of Plaintiff’s Motion (“Dickie Decl.”) at ¶ 2 & Exh. A. After the Black
20 Eyed Peas Defendants failed to provide such availability, on March 21, 2011
21 Plaintiff served notices setting the depositions of the Black Eyed Peas Defendants for
22 May 18, 20, 24 and 26, 2011. Id. at ¶ 3 & Exh. B. Plaintiff’s counsel served the
23 notices under cover of a letter stating Plaintiff’s willingness to move the depositions
24 if other dates worked better for the schedules of the deponents and counsel. Id.
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Over the following several weeks, the Black Eyed Peas Defendants repeatedly

26 objected to the depositions as noticed, but failed to provide alternative dates of
27 availability for the depositions. Id. at ¶¶ 4–12 & Exhs. C–K. Among other
28 objections and unilaterally-dictated conditions, the Black Eyed Peas Defendants
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1 demanded that each of their depositions be limited to two hours, that each of their
2 depositions be combined with their respective depositions in the unrelated Batts case,
3 and that all of the depositions take place on the same day. Id. at ¶ 8 & Exh. G.
4

On April 5, 2011, the Black Eyed Peas Defendants agreed to make themselves

5 available for depositions in July 2011, but they did not provide specific dates of
6 availability and conditioned further dialogue on Plaintiff agreeing to reduce the time
7 allowed for the depositions under Rule 30. Id. at ¶ 13 & Exh. L. Plaintiff continued
8 to insist it be allowed, as is its right, to take seven hour depositions of each of the
9 Black Eyed Peas Defendants. The parties met and conferred extensively regarding
10 this dispute in April of 2011 without reaching a resolution. Id. at ¶¶ 14–21 & Exhs.
11 M–T.
12

The Black Eyed Peas Defendants thereafter informed Plaintiff that they would

13 make themselves available for deposition only during a single week in July 2011,
14 which they initially dictated to be the week of July 18-22, then changed to July 25 to
15 29. Id. at ¶¶ 22–26 & Exhs. U–W. The Black Eyed Peas Defendants further
16 informed Plaintiffs that Plaintiff in the instant action and the plaintiffs in the Batts
17 case would have to take the Black Eyed Peas Defendants’ depositions during that
18 one week. Id.
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The Plaintiffs in the Batts case thereafter filed a motion to compel the 7 hour

20 depositions of the Black Eyed Peas Defendants. Id. at ¶ 29. This motion is set for
21 hearing on July 25, 2011, which was the earliest date that the motion could be heard.
22 Defendants objected to proceeding with the hearing on that date, but when Plaintiffs
23 offered August 1 as an alternate date, Defendants objected to that date as well.
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ARGUMENT

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DEFENDANTS’ EX PARTE APPLICATION MUST BE DENIED
BECAUSE THEY HAVE FAILED TO SUBMIT THE REQUIRED
PLEADINGS AND BECAUSE THEY HAVE FAILED TO MAKE ANY
SHOWING THAT THEY ARE ENTITLED TO EX PARTE RELIEF
Defendants’ ex parte request is nothing more than an unwarranted and

sanctionable attempt to further burden Plaintiff’s counsel. As discussed above, their
cited grounds for this relief (i.e., the need to remedy a supposed conflict) are entirely
baseless. They already agreed to appear for depositions in this case and only now
seek this extraordinary relief in order to undermine a motion that has been filed
against them in an unrelated case. Their request falls far short of meeting the
established requirements for ex parte relief.
In In re Intermagnetics Am, Inc., 101 B.R. 191 (C.D. Cal 1989), the court
noted that “ex parte applications have reached epidemic proportions in the Central
District” and that “the opportunities for legitimate ex parte applications are
extremely limited.” Id. at 191-92. The court explained that ex parte applications run
contrary to established procedural law and eviscerate the adversarial process:
… ex parte applications contravene the structure and spirit of the
Federal Rules of Civil Procedure and the Local Rules of this court. Both
contemplate that noticed motions should be the rule and not the
exception. Timetables for the submission of responding papers and for
the setting of hearings are intended to provide a framework for the fair,
orderly, and efficient resolution of disputes. Ex parte applications throw
the system out of whack. They impose an unnecessary administrative
burden on the court and an unnecessary adversarial burden on opposing
counsel who are required to make a hurried response under pressure,
usually for no good reason.

24 Id. at 191, 193.
In Mission Power Engr. Co. v. Contl. Cas. Co., 883 F. Supp. 488 (C.D. Cal.
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26 1995), the court discussed the debilitating impact that improperly filed ex parte
27 motions have on the adversary system:
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Though the adversary does have a chance to be heard, the parties’
opportunities to prepare are grossly unbalanced. Often, the moving
party’s papers reflect days, even weeks, of investigation and
preparation; the opposing party has perhaps a day or two. This is due
primarily to gamesmanship. The opposing party is usually told by
telephone when the moving party has completed all preparation of the
papers and has a messenger on the way to court with them. The goal
often appears to be to surprise opposing counsel or at least to force him
or her to drop all other work to respond on short notice.

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Id. at 491.
As such, a movant must meet certain requirements in order to establish that it
is entitled to ex parte relief. In Mission Power, supra, the court stressed that an ex
parte request must consist of two parts:
an ex parte motion should never be submitted by itself. It must always
be accompanied by a separate proposed motion for the ultimate relief
the party is seeking. Properly designed ex parte motion papers thus
contain two distinct motions or parts. The first part should address only
why the regular noticed motion procedures must be bypassed. The
second part consists of papers identical to those that would be filed to
initiate a regular noticed motion (except that they are denominated as a
“proposed” motion and they show no hearing date.) These are separate
distinct elements for presenting an ex parte motion and should never
be combined. The parts should be separated physically and submitted
as separate documents.

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20 Id. at 492. (Emphasis in original)
Both the Mission Power and In re Intermagnetics courts discussed the high
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22 standard that must be met in order to sustain a request for ex parte relief. In In re
23 Intermagnetics, the court noted the following requirements:
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First, where there is some genuine urgency such that “immediate and
irreparable injury, loss, or damage will result to the applicant before the
adverse party or his attorney can be heard in opposition.” See
Fed.R.Civ.P. 65(b) (temporary restraining order);
Second, ex parte proceedings are appropriate where there is a danger
that notice to an opposing party will result in that party’s flight,
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destruction of evidence… or secretion of assets, see, e.g., Cal.Code
Civ.Proc. § 485.010 et seq. (ex parte hearing procedure for obtaining
writ of attachment);

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Third, what I have termed “hybrid ex parte applications” (i.e., where the
other side actually is served) may be necessary when a party seeks a
routine order (e.g., to file an overlong brief or to shorten the time within
which a motion may be brought).

7 Id. at 193. The Mission Power court similarly ruled:
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First, the evidence must show that the moving party’s cause will be
irreparably prejudiced if the underlying motion is heard according to
regular noticed motion procedures;

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Second, it must be established that the moving party is without fault in
creating the crisis that requires ex parte relief, or that the crisis occurred
as a result of excusable neglect.

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14 Id. at 492.
Defendants don’t come close to meeting the required standard. As a starting
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16 point, they have not submitted a separate proposed motion for the ultimate relief that
17 they are seeking. This defect alone is fatal to their request. Mission Power, supra,
18 883 F. Supp at 492.
Their request must fail for several substantive reasons as well. First,
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20 Defendants have failed to establish any immediate or irreparable injury or prejudice.
21 Plaintiff requested deposition dates for the Black Eyed Peas Defendants in January.
22 After refusing to provide dates and then refusing to appear for offered dates in May,
23 the Black Eyed Peas Defendants confirmed their availability for the depositions in
24 this case on June 3, 2011. Dickie Decl. at ¶¶ 27-28. Their unwarranted demand that
25 Plaintiffs take depositions in both cases on the same day and for only two hours for
26 each case forced the Plaintiff to re-notice their depositions in this case and the
27 Plaintiffs in the Batts case to file a motion to compel. Id. at ¶29.
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Since that time, Plaintiff’s counsel has reiterated both in writing and verbally

2 the intention to proceed with the depositions of the Black Eyed Peas Defendants in
3 this matter while awaiting the outcome of the ruling on Batts motion to compel. Id. at
4 ¶30. As such, the dates for those depositions will be determined when that court
5 rules on Plaintiffs’ motion to compel. The Defendants are wrong to suggest that
6 there is some current conflict on those dates. It is the Defendants that have
7 manufactured the conflict here and this alleged conflict falls woefully short of the
8 immediate and irreparable showing required to obtain a temporary restraining order.
9 In re Intermagnetics, supra, 101 B.R. at 193.
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Second, Defendants have failed to establish (and may not attempt to establish)

11 that there is any danger “that notice to an opposing party will result in that parties’
12 flight, destruction of evidence or secretion of assets.” Id
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Finally, there is no evidence that the moving party is without fault in creating

14 the “crisis” that they allege entitles them to ex parte relief. In fact, as discussed
15 above, their own dilatory and obstructionist tactics have created this “crisis” and
16 prejudiced Plaintiff’s ability to obtain discovery in this case.
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There is simply no justification for Defendants’ ex parte request. It is nothing

18 more than an attempt to place an “unnecessary adversarial burden” on Plaintiff by
19 requiring a 24 hour response on an issue that Defendants agreed to abide by more
20 than 2 weeks ago. Their conduct in this regard is sanctionable. See, e.g., Chambers
21 v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S.Ct 2123 (1991).
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DEFENDANTS’ EX PARTE APPLICATION INCLUDES BAD FAITH
MISREPRESENTATIONS REGARDING CONFLICTING
DEPOSITIONS

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Defendants further argue in bad faith to this Court that Plaintiff has scheduled

25 conflicting depositions “during the same week, in two different locations, 50 miles
26 apart, causing conflicts for witnesses and their counsel.” [Dckt. 141., p. i.]
27 Defendants know those representations to be false and Plaintiff requests that
28 Defendants immediately withdraw those misrepresentations from their application.
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1 To the contrary, Defendants have repeatedly been informed in both the Batts and
2 Pringle cases that only the Pringle Black Eyed Peas Defendants’ depositions will be
3 proceeding on July 22, 25, 26 and 27. Declaration of Katharine Dunn in Support of
4 Plaintiffs’ Motion (“Dunn Decl.”) at ¶ 3.
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Indeed, during the recent meet and confer between the parties on June 22,

6 2011, Ms. Dunn reiterated to Ms. Kara Cenar, counsel for Defendants, that the only
7 depositions proceeding on those July dates were the depositions of the Black Eyed
8 Peas Defendants in the Pringle case and that any conflicting dates previously noticed
9 in the Batts case were not proceeding. Dunn Decl. at ¶8. Despite Ms. Dunn’s
10 confirmation that the Batts depositions would not be proceeding, Ms. Cenar
11 continued to make statements that she intended to raise Plaintiffs’ “conflicting
12 scheduling of depositions” with the Court. Id. at ¶7. Ms. Dunn further urged that Ms.
13 Cenar avoid making any such representation to this Court, as it would be false. Id. at
14 ¶8. Ms. Cenar stated that she did not understand Ms. Dunn. Id. at ¶9. Ms. Dunn
15 further requested during the same call that Mr. Justin Righettini, also counsel for the
16 Black Eyed Peas Defendants, acknowledge that he understood Ms. Dunn’s
17 statements that the depositions in the Batts case would not be proceeding on the
18 previously noticed dates and therefore there existed no conflicting dates. Id. at ¶10.
19 Mr. Righettini responded in the affirmative. Id.
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Ms. Dunn re-iterated this position in a June 23, 2011 email:

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Kara, Our position now remains as it was before and during the call
yesterday. The depositions are going forward in the Pringle case. Id. at
¶11.

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Ms. Cenar acknowledged that this was Plaintiff’s position in her follow up

25 email:
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So you confirming [sic] that you are not taking the deposition of Adams,
Pineda, Gomez, and Ferguson on July 22,-27 in the Batts case
notwithstanding our making them available on that date and
notwithstanding our informing you that they are not available on any
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other dates prior to the Summary Judgment Briefing schedule. Id. at
¶12.
Mr. Pink, Ms. Cenar’s law partner, makes statements in his declaration that

4 can be described, at best, as “bad faith,” when he states that there are “outstanding
5 and conflicting deposition notices” in both cases. Plaintiffs have made clear that the
6 Black Eyed Peas Defendants will be deposed in the Pringle case from July 22-27 and
7 that the Batts depositions will not proceed at that time. This ex parte request was
8 therefore filed in bad faith and conduct of Defendants and their counsel is
9 sanctionable.
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CONCLUSION
For each of the reasons identified in this Memorandum, Plaintiff Bryan Pringle

12 requests that the Court deny Defendants’ Ex Parte Application for a Protective Order
13 Postponing the Black Eyed Peas Defendants’ depositions.
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15 Dated: July 6, 2011
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Dean A. Dickie (appearing Pro Hac Vice)
Kathleen E. Koppenhoefer (appearing Pro Hac Vice)
MILLER, CANFIELD, PADDOCK AND STONE,
P.L.C.
Ira Gould (appearing Pro Hac Vice)
Ryan L. Greely (appearing Pro Hac Vice)
GOULD LAW GROUP
George L. Hampton IV (State Bar No. 144433)
Colin C. Holley (State Bar No. 191999)
HAMPTONHOLLEY LLP

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By: /s/ Dean A. Dickie
Attorneys for Plaintiff Bryan Pringle

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