Arnold Goldstein et al v. Exxon Mobil Corporation, et al

RESPONSE

C.D. Cal.February 19, 2019

PLAINTIFFS’ RESPONSES TO DEFENDANTS’ EVIDENTIARY OBJECTIONS CASE NO. 2:17-CV-02477-DSF (SKX) 1 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 SHER EDLING LLP MATTHEW J. MATERN (SBN 159798) mmatern@maternlawgroup.com JOSHUA D. BOXER (SBN 226712) jboxer@maternlawgroup.com TAGORE O. SUBRAMANIAM (SBN 280126) tagore@maternlawgroup.com DANIEL J. BASS (SBN 287466) dbass@maternlawgroup.com MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, California 90266 Tel: (310) 531-1900 Fax: (310) 531-1901 MATTHEW K. EDLING (SBN 250940) matt@sheredling.com ADAM M. SHAPIRO (SBN 267429) adam@sheredling.com MEREDITH S. WILENSKY (SBN 309268) meredith@sheredling.com SHER EDLING LLP 100 Montgomery St., Suite 1410 San Francisco, CA 94104 Tel: (628) 231-2500 Fax: (628) 231-2929 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARNOLD GOLDSTEIN, et al., Plaintiffs, v. EXXON MOBIL CORPORATION, et al., Defendants. Case No. 2:17-cv-02477-DSF (SKx) PLAINTIFFS’ RESPONSES TO DEFENDANTS’ EVIDENTIARY OBJECTIONS TO NEW EVIDENCE SUBMITTED WITH REPLY BRIEF Judge Dale S. Fischer DATE: February 25, 2019 TIME: 1:30 p.m. CTRM: 7D Second Amended Complaint filed: July 9, 2018 Case 2:17-cv-02477-DSF-SK Document 168 Filed 02/19/19 Page 1 of 4 Page ID #:9031 PLAINTIFFS’ RESPONSES TO DEFENDANTS’ EVIDENTIARY OBJECTIONS CASE NO. 2:17-CV-02477-DSF (SKX) 1 1 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 SHER EDLING LLP Plaintiffs Arnold Goldstein, Gisela Janette La Bella, and Hany Youssef (“Plaintiffs”) hereby respond to Defendants Exxon Mobil Corporation (“ExxonMobil”) and Torrance Refining Company LLC (“TRC”) (collectively, “Defendants”) Evidentiary Objections to Plaintiffs’ Reply in Support of Motion to Certify Class (“Evidentiary Objections”) on the following grounds. ARGUMENT I. The Court Has Discretion to Consider the Refinery’s Health Risk Assessment. While new evidence is generally not allowed on reply, a “court has the discretion to consider new evidence presented on reply, particularly if the new evidence appears to be a reasonable response to the opposition.” Hodges v. Hertz Corp., 2018 WL 5629337, --- F.Supp.3d ---- (N.D. Cal. 2018); Edgen Murray Corp. v. Vortex Marine Constr., Inc., No. 18-CV-01444-EDL, 2018 WL 4203801, at *3 (N.D. Cal. June 27, 2018) (declining to strike reply declaration because the new evidence in the declaration was “filed to respond to Plaintiff's opposition and is consistent with the evidence and arguments presented in the original motion”). The sole “new fact” that Defendants point to in support of Plaintiffs’ Reply is a single citation to the Refinery’s own Health Risk Assessment (“HRA”), a public report that, as Defendants point out, was already produced by Defendants in discovery. This evidence was offered in direct response to Defendants’ argument that Rule 23(b)(2) cannot be used to certify the class because injunctive relief is incidental to monetary relief sought. See Defendants’ Opposition to Class Certification, Dkt. 150, at 23. The HRA demonstrates that harmful air emissions surpass the boundary of the Refinery, forming the basis of the injunctive relief Plaintiffs now seek. Because the document was previously produced by Defendants and is a background fact provided in direct response to Defendants’ arguments in opposition, there is little risk of unfair surprise. Cf. Sunburst Minerals, LLC v. Emerald Copper Corp., 300 F. Supp. 3d 1056, 1060 (D. Ariz. 2018) (“The rule exists Case 2:17-cv-02477-DSF-SK Document 168 Filed 02/19/19 Page 2 of 4 Page ID #:9032 PLAINTIFFS’ RESPONSES TO DEFENDANTS’ EVIDENTIARY OBJECTIONS CASE NO. 2:17-CV-02477-DSF (SKX) 2 1 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 SHER EDLING LLP to guard against unfairness and surprise.”) Therefore, Plaintiffs respectfully request the Court exercise its discretion to consider this fact. II. The Supplemental Expert Declarations Should Be Admitted to Support a Renewed Motion Should the Court Deny Certification. Defendants’ second objection mostly seeks to re-affirm this Court’s prior ruling that it will not consider the proffered expert declarations on Reply. Defendants’ Evidentiary Objections at 2-3. As described in detail in Plaintiffs’ Ex Parte Application, Sher Edling has worked diligently to litigate this action since association and sought to notify the court and request admission of additional evidence at the earliest possible date. Dkt. No. 155 at 4. In accordance with the Court’s Order, Plaintiffs are only seeking certification based upon evidence that was submitted with the motion. The declarations that were filed with the Reply brief were offered only for the limited purpose of showing that Plaintiffs should be allowed to renew their motion in the event the instant motion for class certification is denied. Reply, Dkt. 161, at 11-12. While there is no court rule that specifically addresses leave to renew motions for class certification, Judge Gutierrez recently gave Plaintiffs the opportunity to refile under similar circumstances when the basis for denial was curable. See All America Andrews v. Plains All Am. Pipeline, L.P., No. CV154113PSGJEMX, 2018 WL 2717833, at *2 (C.D. Cal. Apr. 17, 2018) (second renewed motion for class certification of property subclass arising from oil spill permitted where outstanding questions of common evidence were curable). In that case, the court found class certification was essential to protecting the interests of the injured property owners, as the “real property owners impacted . . . would have little success prosecuting their claims individually,” and “a viable real property subclass offers the best chance of remedy for impacted property owners.” Id. So too here. Mot. at 22. Accordingly, should the Court find that the evidence submitted in support of Plaintiffs’ Motion does not support certification, the proffered expert declarations Case 2:17-cv-02477-DSF-SK Document 168 Filed 02/19/19 Page 3 of 4 Page ID #:9033 PLAINTIFFS’ RESPONSES TO DEFENDANTS’ EVIDENTIARY OBJECTIONS CASE NO. 2:17-CV-02477-DSF (SKX) 3 1 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 SHER EDLING LLP should be considered for the sole purpose of determining whether Plaintiffs should be granted leave to renew their motion for class certification. Reply at 12. III. CONCLUSION Based on the foregoing, the Plaintiffs request that the Defendants’ Evidentiary Objections be overruled. Respectfully submitted, CERTIFICATE OF SERVICE I hereby certify that on February 19, 2019, the foregoing document(s) was filed with the Clerk of the Court via CM/ECF. Notice of this filing will be sent by email to all registered parties by the Court’s electronic filing system. By: /s/ Adam M. Shapiro Adam M. Shapiro DATED: February 19, 2019 SHER EDLING LLP /s/ Adam Shapiro MATTHEW K. EDLING MEREDITH S. WILENSKY ADAM M. SHAPIRO MATERN LAW GROUP, PC MATTHEW J. MATERN JOSHUA D. BOXER TAGORE O. SUBRAMANIAM DANIEL J. BASS Attorneys for Plaintiffs Case 2:17-cv-02477-DSF-SK Document 168 Filed 02/19/19 Page 4 of 4 Page ID #:9034