Committee to Protect Our Agricultural Water et al vs. Occidental Oil and Gas Corporation et al.

Filing 126

ORDER signed by Judge Garland E. Burrell, Jr. on 10/1/2015 DENYING 116 Ex Parte Application continuing the hearing date on the re-noticed motions to dismiss. (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COMMITTEE TO PROTECT OUR
AGRICULTURAL WATER; MIKE
HOPKINS, an individual; JOHN
WEDEL, an individual,
Plaintiffs,

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ORDER DENYING PLAINTIFFS’ EX
PARTE APPLICATION

v.

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No. 1:15-cv-01323-GEB-JLT

OCCIDENTAL OIL AND GAS
CORPORATION, a Texas
corporation; WESTERN STATES
PETROLEUM ASSOCIATION (WSPA),
a non-profit trade
association; CALIFORNIA
INDEPENDENT PETROLEUM
ASSOCIATION (CIPA) a nonprofit trade association;
CHEVRON U.S.A. INC., a
Pennsylvania corporation;
CALIFORNIA DIVISION OF OIL,
GAS & GEOTHERMAL RESOURCES
(DOGGR); EDMUND G. BROWN, an
individual; TIMOTHY R.
KUSTIC, an individual;
MARK NECHODOM, an individual;
LORELEI H. OVIATT, an
individual; CALIFORNIA
RESOURCES CORPORATION (DOE
1), a Delaware corporation;
and DOES 2 through 100,

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Defendants.

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This action was transferred from the Central District

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of

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Transfer Venue, ECF No. 95.) At that time, multiple fully-briefed

California

on

August

31,

2015.

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(See

Order

Re:

Motion

to

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dismissal motions were scheduled for hearing on September 10,

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2015. The transfer order vacated the September 10, 2015, hearing

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scheduled on each dismissal motion and instructed the parties to

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“re-file and/or re-notice” the motions in this Court “pursuant to

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the

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judge’s] instructions.” (Id. at 20:1-3.) The moving defendants

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subsequently re-noticed their dismissal motions for hearing on

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October 19, 2015. (See ECF Nos. 109, 110, 112-115.)

Eastern

District’s

Local

Rules

and/or

the

[undersigned

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On September 28, 2015, Plaintiffs filed an ex parte

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application, essentially seeking to continue the hearing date on

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the re-noticed dismissal motions until a time after which the

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Court could consider “whether to grant Plaintiffs leave to file a

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Second Amended Complaint.” In the alternative, Plaintiffs request

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a two week “extension of time under Local Rule 144 to respond to

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Defendants’ re-noticed Motions to Dismiss.” (Pls.’ Ex Parte Appl.

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1:5-13, ECF No. 116.) Plaintiffs state:

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On September 22, 2015, Plaintiffs[] sent
a letter to Defendants, . . . seeking
Defendants’ agreement to stipulate to a
request for leave to amend and included a
copy
of
the
proposed
Second
Amended
Complaint.

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On September 24, 2015, Mitchell Rishe
wrote that the State Defendants refused to
stipulate to the filing of the SAC, stating
that Plaintiffs’ SAC includes “confidential
attorney-client
privileged
information.” . . .
. . . .
Plaintiffs’ counsel . . . then sought
guidance from ethics counsel who could not
understand
the
basis
for
the
alleged
assertion
of
privilege
by
the
State
Defendants. He further sought clarification
[from] the State Defendants – that request
went unanswered.
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. . . .

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. . . Plaintiffs thus file this ex parte
application with a redacted copy of the
Second Amended Complaint. . . . seek[ing]
leave to either file the Second Amended
Complaint (with or without the redacted
information as determined by the Court)1 or
an extension of time within which Plaintiffs
have to file oppositions to the Re-Noticed
Motions to Dismiss.

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(Id. at 5:6-6:20 (citations omitted).)

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Plaintiffs argue:

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[T]he privilege issues makes it impossible
for
Plaintiffs
to
address
in
their
oppositions why the Court should deny each of
the six re-noticed motions to dismiss. These
opposition briefs are due on October 5, 2015.
Plaintiffs
seek
an
orderly
method
to
alleviate the Court’s burden and avoid
multiple motions to dismiss on the previous
iteration of the Complaint.

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Plaintiffs thus ask the Court to extend
time for Plaintiffs to respond to Defendants’
re-noticed Motions to Dismiss . . . .

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. . . [T]his is the most efficient and
fair way to proceed for the Court and all
parties. It will narrow the issues in
contention
before
the
Court
and
save
substantial judicial resources that would
otherwise be spent on issues that could be
resolved through the filing of an amended
complaint.

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(Id. at 2:4-19.)
Defendants

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oppose

Plaintiffs’

ex

parte

request,

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rejoining: “Plaintiffs[’] request . . . is an attempt to delay or

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derail this Court’s consideration of the fully briefed Motions to

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On September 29, 2015, Plaintiffs submitted for in camera consideration
a Request to Seal Documents, declaration in support thereof, proposed order,
and an unredacted copy of Plaintiffs’ proposed Second Amended Complaint, which
is the document Plaintiffs seek to file under seal. Plaintiffs submitted these
documents in connection with their ex parte application. However, in light of
this order, decision on the sealing request is unnecessary.

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Dismiss that are currently noticed for hearing on October 19,

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2015.” (Def. Chevron’s Opp’n2 1:13-15, ECF No. 120.) Defendants

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further counter, inter alia:

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[W]hile it is true that Plaintiffs have
repeatedly asked Defendants to “stipulate” to
the filing of [a Second] Amended Complaint,
for more than six weeks they refused to
provide a copy of any proposed amendment. In
fact, Plaintiffs refused even to explain how
. . . they planned to cure the multiple,
incurable deficiencies in the First Amended
Complaint . . . .

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. . . In fact, even now, Plaintiffs do
not claim that the proposed amended pleading
cures all of the multiple deficiencies
Defendants have identified.

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Similarly baseless is the notion that
because the State Defendants . . . have
notified
all
parties
that
Plaintiffs’
proposed Second Amended Complaint contains
attorney-client privileged communications, it
is somehow “impossible for Plaintiffs to
address in their oppositions why the Court
should deny each of the six re-noticed
motions to dismiss.” Dkt. 116, Application at
2. First, Plaintiffs have already filed
opposition briefs, and Plaintiffs offer no
explanation why the transfer of this case
from the Central to the Eastern District
entitles them to file new opposition briefs
when the motions to dismiss were fully
briefed before the transfer order. The
State’s privilege claim with respect to the
proposed Second Amended Complaint does not
impact the already filed opposition briefs,
over which the State has not asserted
privilege. Second, Plaintiffs do not explain
how allegations that are not contained in the
operative pleading could be grounds to deny
motions to dismiss the operative complaint,
whether or not they are something Plaintiff
would like to put in yet another Amended
Complaint.

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Each Defendant has joined in Defendant Chevron U.S.A., Inc.’s
Opposition. (See ECF Nos. 121-125.) Some of the Defendants make in their
joinder notices additional arguments in opposition to Plaintiffs’ ex parte
application. (See, e.g., State Defs.’ Opp’n 2:1-3, ECF No. 122.)

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In
sum,
Plaintiffs’
Application
without merit and should be denied.

is

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(Id. at 1:20-24, 2:23-3:15.)

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The State Defendants additionally counter:

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Plaintiffs’ asserted emergency basis for
requesting ex parte relief is simply that no
hearing date was available for th[eir] . . .
request for leave [to amend] before the date
of the hearing on [the pending dismissal
motions]. Plaintiffs provide no explanation
as to why it is necessary to hear th[eir] . .
. request for leave to amend on an ex parte
basis . . . .

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(State Defs.’ Opp’n 2:9-14, ECF No. 122.)
Defendant

Kern

County

Planning

Director

Lorelei

H.

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Oviatt “further opposes Plaintiffs’ Ex Parte Application on the

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grounds that all of the requested relief therein would improperly

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subject [her] to additional, unwarranted litigation despite clear

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authority providing that [she] is immune from suit as a result of

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her absolute and qualified immunity.” (Oviatt Not. Joinder 1:7-

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10, ECF No. 124 (citation omitted).) Oviatt argues:

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In briefing the presently-filed motion
to dismiss the First Amended Complaint,
Oviatt
has
already
incurred
the
only
permissible “burden of litigation” for an
official who has immunity from suit for the
alleged claims. See, e.g., Mitchell v.
Forsyth,
472
U.S.
511,
525-526
(1985)
(immunity of public officials should be
determined as quickly as possible to avoid
undesirable
consequences,
including
“the
general costs of subjecting officials to the
risks of trial – distraction of officials
from their governmental duties, inhibition of
discretionary action, and deterrence of able
people from public service.”). For this
additional
reason,
Plaintiff’s
Ex
Parte
Application
should
be
denied
and
the
currently-filed motions to dismiss should be
heard as scheduled on October 19, 2015.
(Id. at 1:15-2:2.)
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Plaintiffs have not shown sufficient justification for

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the

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application is DENIED.

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Dated:

requested

extensions.

Therefore,

October 1, 2015

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Plaintiffs’

ex

parte