OPPOSITION TO DEFENDANTS EX PARTE APPLICATION TO SHORTEN TIME
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Charles L. Murray III, SBN 195053
444 South Flower St., Suite 1500
Los Angeles, California 90071
Telephone (213) 627-5983
Facsimile (213) 627-6051
Attorney for Plaintiff
MARK D. DAVIS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA-LOS ANGELES
TO THE HONORABLE CHRISTINA A. SNYDER, UNITED STATES
DISTRICT COURT JUDGE, AND TO ALL DEFENDANTS AND THEIR
ATTORNEYS OF RECORD:
Plaintiff MARK DAVIS hereby submits his opposition to Defendants ex parte
application based on the following undisputed facts.
MARK D. DAVIS,
Plaintiff,
vs.
DAVIDSON HOTEL COMPANY, LLC, a
Delaware limited liability company; TOM
HARWELL, an individual; and DOES 1-
50, inclusive,
Defendants
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Case No: CV12-06327 CAS (AJWx)
Honorable Christina A. Snyder
PLAINTIFF MARK DAVIS’
OPPOSITION TO DEFENDANTS EX
PARTE APPLICATION TO SHORTEN
TIME TO FILE A MOTION IN
LIMINE TO EXCLUDE WITNESSES
TIMELY IDENTIFIED IN
PLAINTIFF’S RULE 26
DISCLOSURES; DECLARATION OF
CHARLES L. MURRAY III IN
SUPPORT THEREOF
Case 2:12-cv-06327-CAS-AJW Document 67 Filed 06/17/13 Page 1 of 8 Page ID #:2561
OPPOSITION TO DEFENDANTS EX PARTE APPLICATION TO SHORTEN TIME
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• Defendants ex parte application improperly seeks to remedy Defendants failure to
file a timely motion in limine. Defendants had seventy-six (76) days to file their
motion to exclude witnesses identified in Plaintiff’s October 17, 2012 Rule 26
witness disclosures. There are no new witnesses as Defendants misrepresent.
• The one-day delay in the Local Rule Filing did not create prejudice as Defendants
would still not have been able to timely file their motion in limine.
• Defendants “Friday Night” 8:30PM Ex Parte Notice is gamesmanship without
any evidence of a Meet and Confer. [Murray Declaration ¶11 & 12]
• Defendants cannot feign surprise to Plaintiff’s theory of “Harassment by
Association” as they were given notice of it in the First Amended Complaint;
Defendants even briefed this issue in their Reply to the MSJ Opposition; in
addition to the Court’s briefing of the issue in the Court’s Tentative Ruling.
Defendants own Memorandum of Contentions of Fact and Law Address this
Issue. [Murray Declaration ¶9 & 10]
• Plaintiff identified Leila Clark and Mohamad Ghazizadeh in his Rule 26
disclosures and in his Local Rule 16-2.4 memorandum.
• Defendants conducted no depositions nor discovery related to Leila Clark and
Mohamad Ghazizadeh. [Murray Declaration ¶4]
• On May 21, 2013, at the Pre-Trial Meeting, Counsel for Defendants informed
Plaintiff’s Counsel that she intended on filing a Motion in Limine to exclude
harassment testimony directed towards Tracy Ward. [Murray Declaration ¶5]
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OPPOSITION TO DEFENDANTS EX PARTE APPLICATION TO SHORTEN TIME
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Based on the above undeniable facts, Defendants improper motion seeking relief
from their own self-created “crisis” should be denied under Mission Power Eng'g Co. v.
Continental Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995)
I. FACTUAL BACKGROUND
October 17, 2012 Plaintiff serves Rule 26 Disclosures identifying Leila
Clark and Mohamad Ghazizadeh as witnesses and
anticipated testimony. [Defendants Exhibit C]
[Defendants conducted no depositons of Clark &
Ghazizadeh]
May 21, 2013 Pre-Trial Conference of Counsel; Defense counsel
informs Plaintiff’s counsel of her intention to file a
Motion in Limine regarding Harassment Testimony
towards 3rd Parties [Declaration of Charles Murray ¶ 5].
June 3, 2013 Last day to file Motions in Limine on 28 day Notice.
June 10, 2013 Due date: Witness list and Memorandum of Contentions
of Fact and Law
June 11, 2013 Plaintiff files Witness List again identifying Leila Clark
and Mohamad Ghazizadeh as witnesses and
Memorandum of Contentions of Fact and Law.
[Defendants Exhibits A & B]
June 14, 2014 Defendant file ex parte application claiming Leila Clark
and Mohamad Ghazizadeh are new witnesses.
July 1, 2013 Pre-Trial Conference, Motions in Limine to be heard.
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II. EX PARTE APPLICATIONS ARE SOLELY FOR EXTRAORDINARY
RELIEF, NOT TO REMEDY A SELF-CREATED “CRISIS”
Though the party opposing an ex parte application "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." Mission Power Eng'g Co. v. Continental Cas. Co., 883
F. Supp. 488, 490 (C.D. Cal. 1995). Thus, to justify ex parte relief, applicant must show
that (1) its "cause will be irreparably prejudiced if the underlying motion is heard
according to regular noticed motion procedures" and (2) it is "without fault in
creating the crisis that requires ex parte relief, or that the crisis occurred as a
result of excusable neglect." [Id. at 492][emphasis added]
The applicant "must show why [it] should be allowed to go to the head of the line
in front of all other litigants and receive special treatment." Id.
III. DEFENDANTS ARE ENTIRELY AT FAULT, TACITLY ADMITTING
THEIR FAILURE TO FILE A TIMELY MOTION WITHIN 76 DAYS.
Defendants own ex parte exhibits undeniably establish Defendants are solely at
fault for not timely filing their motion.
Defendants exhibits tacitly concede Plaintiff disclosed both Leila Clark and
Mohamad Ghazizadeh as witnesses and their anticipated testimony in his October 17,
2013 Rule 26 disclosures [Defendants Ex Parte Exhibit C]. Thus it is admitted
Defendants were on notice of both the identities and content of testimony of both
witnesses. Defendants had 76 days to timely file but choose not to.
Defendants sat idle, choosing not to file timely motions, but instead gambled on
this Court buying into their legally unsupported argument that because Plaintiff is not
“gay” or a “queer” he lacks standing under FEHA.
Simply put, Defendants gamble failed and now they are engaging in nothing
more than damage control, improperly seeking to remedy their own inexcusable
failure to timely file a 28-day noticed motion within a 76 day window of time. Ex
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parte relief is thus inappropriate under Mission Power.
Ex parte motions are not meant to remedy self-induced gambling debts or
inexcusable decisions not to file a 28-day noticed motion within a 76 day window.
IV. DEFENDANTS SEEK TO MISLEAD THIS COURT TO HIDE THEIR
CULPABILITY BY WRONGFULLY ALLEGING NEW WITNESSES .
Defendants ex parte motion blames Plaintiff to justify Defendants failure to
“discover” Leila Clark and Mohamad Ghazizadeh as witnesses and that they have only
now “first learned” of these witnesses. [Defendants ex parte Motion Page 2, Lines 2-7].
Defendants’ argument is disproved by their exhibits.
Defendants Exhibit C [Plaintiff’s October 17, 2012 Rule 26 disclosures] clearly
lists both Leila Clark and Mohamad Ghazizadeh as witnesses:
F. Mohammad Ghazizadeh, employed by Hilton Corporate in Anaheim,
facts surrounding complaint for harassment and hostile work environment
alleged in Plaintiff’s complaint, including harassment hostility towards
Tracy Ward;
I. Leila Clark, employed by Defendant, facts surrounding complaint for
harassment and hostile work environment alleged in Plaintiff’s complaint,
including harassment hostility towards Tracy Ward;
Defendants again improperly claim that Plaintiff’s failure to mention Clark and
Ghazizadeh as witnesses at the pretrial hearing warrants ex parte relief and exclusion to
divert the Court’s attention from Defendants self induced crisis.
Defendants now seek to exclude at the Pre-Trial Conference of Counsel
required by Local Rule 16-2.4 [Defendants ex parte application Page 2,
Lines 2-3]
Plaintiff’s failure to disclose witnesses and accurately set forth his
contentions of law and fact at the pre-trial conference of counsel, and the
fact that he instead revealed new witnesses . . . on June 11, 2013, which
have necessitated this Application. (Fromholz Decl., ¶¶ 3, 4, 5.)
[Defendants ex parte application Page 4, Lines 1-8]
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Defendants’ argument does not hold water and is again factually disproved
by their exhibits.
Local Rule 16-2.4 states in relevant part:
L.R. 16-2.4 Disclosure of Witnesses. The parties shall disclose the
information required by F.R.Civ.P. 26(a)(3)(A)(i) and (ii) as to
witnesses (including expert witnesses) to be called at trial other than
those contemplated to be used solely for impeachment.
Local Rule 16-5 states in relevant part:
L.R. 16-5 Witness List. Each party shall serve and file under separate cover,
at the same time as the Memorandum of Contentions of Fact and Law, a
witness list containing the information required by F.R.Civ.P. 26(a)(3)(A).
Leila Clark and Mohamad Ghazizadeh were disclosed in the October 17,
2012 Rule 26 Disclosures [Defendants Ex. C].
Leila Clark and Mohamad Ghazizadeh were again disclosed by Plaintiff in
his June 11, 2013 Rule 16-4 Witness List. [Defendants Ex. A]
Undeniably Clark and Ghazizadeh (and their anticipated content of testimony)
were not “new” as misleadingly alleged in Defendants application.
The remaining issue is a one-day delay. Defendants do not, nor can they establish
the one-day caused prejudice, warranting ex parte relief.
V. THE SINGLE DAY DID NOT CAUSE PREJUDICE AS DEFENDANTS
WOULD STILL HAVE BEEN UNABLE TO FILE A TIMELY MOTION.
As established through Defendants Exhibits A, B and C, Defendants were aware
of Leila Clark and Mohamad Ghazizadeh and their anticipated testimony on October 17,
2012. These were not “new” witnesses.
What remains is a complete absence of prejudice to Defendants caused by a
single day delay in Plaintiff filing his Local Rule 16-4 Memorandum and Witness list.
Admittedly Plaintiff filed his Local Rule 16-4 memorandum on June 11, 2013,
one-day late. However had Plaintiff filed said memorandum on June 10, 2013
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Defendants would still not have been able to file a timely motion in limine.
Assuming arguendo Plaintiff filed on June 10, 2013, Defendants deadline to file a
timely motion in limine was still June 3, 2013.
The single day does cause any prejudice, nor excuse Defendants decision not
to file their motion in limine by June 3, 2013. In fact Defendants had 76 days to file
but simply choose to gamble on their Motion for Summary Judgment rather than
bother with motion scheduling.
Accordingly, Defendants request for ex parte relief should be denied.
VI. DEFENDANTS PROPOSED MOTION IN LIMINE IS A DISGUISED
EFFORT TO KEEP RELEVANT EVIDENCE AWAY FROM THE JURY.
Defendants proposed Motion in Limine seeks to exclude Leila Clark and
Mohamad Ghazizadeh from testifying and any reference to facts or motive behind
discrimination, harassment and wrongful termination of Plaintiff because of his
affiliation or advocacy of Tracy Ward who is openly gay.
The improper motive for Defendants motion flows from this Court’s denial of
Defendants Motion for Summary Judgment. Defendants are now faced with their
gambling loss and now engage in improper damage control before trial.
Defendants’ reliance on Federal Rules of Evidence 401, 402 and 403 is simply
unpersuasive.
Rule 401 holds Evidence is relevant if (a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action. Obviously facts related to sexual orientation
and affiliation or advocacy with a member of a protected class under FEHA meets both
requirements under 401.
Defendants offer no supporting facts under Rule 402 Relevant evidence is
admissible unless any of the following provides otherwise: the United States
Constitution; a federal statute; these rules; or other rules prescribed by the Supreme
Court.
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Lastly, Defendants reliance on Rule 403 is speculative, argumentative and
improperly seeks to exclude probative evidence related to factual issues of association
or advocacy with a member of a protected class, retaliation and wrongful termination,
and any material that will harm Defendants.
This Court eloquently stated in its tentative ruling denying Defendants Motion for
Summary Judgment:
"the importance of zealously guarding an employee's right to a full trial,
since discrimination claims are frequently difficult to prove without a full
airing of the evidence and an opportunity to evaluate the credibility of the
witnesses." McGinest v. GTE ServiceCorp., 360 F.3d 1103, 1112 (9th Cir.
2004) [Tentative Ruling June 3, 2013]
Evidence Rule 403 was not intended to be used to exclude probative evidence
simply because it harms Defendants case.
VII. CONCLUSION
Defendants ex parte application for an order to shorten time should be denied as
Defendants bare sole responsibility for creating their own crisis by not filing a timely
28-day noticed motion within the 76 days afforded to them.
Leila Clark and Mohamad Ghazizadeh are not new witnesses and Defendants
cannot demonstrate prejudice by a single day delay, as they still would have failed to
file a timely motion regardless.
Accordingly Defendants ex parte application should be denied.
Dated June 15, 2013 Respectfully Submitted for the Plaintiff
By: __/s/ Charles Murray________
Charles L. Murray III
Attorney for PLAINTIFF MARK DAVIS
Case 2:12-cv-06327-CAS-AJW Document 67 Filed 06/17/13 Page 8 of 8 Page ID #:2568
