Free Supplemental Document - District Court of California - California

Case 3:07-cv-02193-LAB-WMC

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Filed 04/30/2008

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Patrick N. Keegan, Esq. (SBN: 167698) Brent Jex, Esq. (SBN: 235261) KEEGAN & BAKER, LLP 4370 La Jolla Village Drive, Suite 640 San Diego, California 92122 Telephone: (858) 552-6750 Facsimile: (858) 552-6749 Attorneys for Representative Plaintiff RICHARD STANFORD UNITED STATES DISTRICT COURT

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) Case No. RICHARDRICHARD S TANFORD , individually and 07-CV-2193 LAB (WMC) ) CLASS peon behalf of all other p ersons sim ila onon behalf of all other on behalf of all other ACTION Assigned public, situatedsituated andsituated and on behalf of )the generalto: The Hon. Larry A. Burns ) ) PLAPLAINTIFF SPLAINTIFF S SUPPLP Plaintif f, ) MEMORANDUMMEMORANDUM OF POIN ) AUTHORITIESAUTHORITIES IN OPPOSITI vs. ) DEFENDANT SDEFENDAN T S DEFE ) DISMISSDISMISS PURDISMISS PURSUA HHOMEHOM E DEPO T U.S.A., INC ., a Delaware ) 12(B)(6) corporation; ) ) Date: March 17, 2008 Defend ant. ) Time: 10:30 a.m. ___________________________________ ) Place: Courtroom 9 I. Plaintiff s Due Process Rights Require Leave to Conduct Relevant Discovery.

TheThe Co urt s April 8 th Order requiring additional briefingOrder requiring additional brief

toto apply Rule 56 standards to decide Defendantto apply Rule 56 standa rds to decid e Defen dant Ho

MotionMotion To Dismiss the First AmendMotion To Dism iss the First A mended Comp laMotio

and charges for Plaintiff Richard Stanford s hotand charges for Plaintiff Richard Stanford s hot w mattemattermatter of this lmatter of this litigation.

However, Plaintiff has not had the opp

informationinformation essential to its opposition before this converted Rule 56 motioninforma

therebythereby effec tively depriving Plaintiff of procedu ral rigthereby effectively depriving Pla

conductcondu ct furth er disco very, or in t his case , any discovery. 1 Metabo life Int l,Metabolife Int l

If the CourtIf the Court decides this motion under a Rule 56 standard, withoutIf the Court de asas the nonmoving party the procedural safeguards codifiedas the nonmoving party the procedura thethe U.S. Supreme Court, the Court would the U.S. Suprem e Court, the Court w ould be dep safeguardssafeguards and his dsafeguards and his due processsafeguards and his due process rig devicedevice for litigants to avoid summary judgment whedevice for litigants to avoid summary
Supplemental O pposition to Mo tion to Dismiss

Case 3:07-cv-02193-LAB-WMC

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264264 F.3d 83264 F.3d 832,264 F .3d 832 , 264 F.3d 832, 846264 F.3d 832, 846 264 F.3d 832, 846 (9th

thethe 9th Circuit held it was Circuit held it was an abuse of Circuit held it was an abuse of discreti

judgmentjudgment motion before granting the nonmoving party anjudgmen t motion be fore grantin Id. 323 F .3d at p. 7 74. AlthAlthoughAlthough Plaintiff contends that he has standing to bring this representative

PlaiPlaintiffPlaintiff Plaintiff shPlaintiff should be allowed ample opportunity to conduct discovery t

documentationdocum entation essentia l to this op position . (See Supp l. Keeg an De cl., ¶4.) Sup pl. K e CourtCourt should either return to applying Rule 12(b)(6) standards in adjudicatingCourt shou

12(b)(6)12(b)(6 ) motion , Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337 -3, 80 F.3d 3 36, 337-

continuecontinue the hearing on this mcontinue th e hearing o n this moti continue the hearing o essential to oppose this motion.3 II. Plaintiff Has Standing To Bring R epresentative Claims. Plaintiff sPlaintiff s FAC alleges and hisPlaintiff s FAC alleges and his declaration states becausebecause Home Depot (1)because Home Dep ot (1) failed to obtain permits;because Home D

deceptivedeceptive s tatements ab out obtainin g permits an d the price o f permitsdeceptive s tatemen for its water heater installation services. (Supp l. Stanford Decl., ¶2 & Exhibit 1.) NeitherNeither Home Depot, the its local store,Neither Home Depot, the its local store, nor

aa copy of an issued permit or provided notification of the issuance of the pera copy of an issued

developdevelo p affirm ative ev idence . Bulington Northern Santa Fe RBulington Norther AssiniboineAssiniboine And Sioux Tribes OfAssiniboine And Sioux Tribes Of The Fort Peck Reser citing United States v. Kitsap Physicians Serv., 314 F .3d 995 , 1000 ( 9th Cir . 2002) .
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Citing Anderso n v. Liberty Anderson v. Liberty LAnderson v. Liberty Lobby, Inc., 477 U. that ade quate d iscove ry will occ ur befo re sum mary jud gmen t is consi dered. Ibid.
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The Court may also orderThe Court may also order expeditedThe Court may also order exp aa show ing of g ood ca use. Semito ol, Inc. v. T okyo E lectron Amer ica, Inc., 2 208 F.R.D. 27 208 F 276276 (N.D.Cal.2002). Plaintiff contends that good276 (N.D .Cal.2002 ). Plaintiff con tends that inin the ein the evin the event that the Court finds Plaintiff to lack standing since ÿÿourts hav c plaintiffsplaintiffs who have been determplaintiffs who have been determined plaintiffs who ha complaint was filed, to su bstitute as plaintiffs the true real parties in interest. [Citations.]ÿÿ , Branick v. DowneyBranic k v. Do wney Saving s & Loa n Assn ., 39 Cal.4th 235, 243 (2006) and Cas Sup. Ct., 159 Cal.App.4th 273, 290 (2008).
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StanfordStanford DeStanfo rd Dec l.,Stanford Decl., ¶4.) As a result, the existence of an issue pe

Report Report is contested. In deed, give n the fact tha t Home D epot has n ow con cede in itsRepo

briefbrief that abrief that a receiptbrief that a receipt which Home Depot s counsel declared under

PlaintPlaintiff sPlaintiff s original invo ice that lacke d the $19.0 0 overch arge was , in fact, not a

docume nt,document, and Defendant now wdocument, and Defendant now withdrawdocumen lackedlacked the $19 charge , (Def. Reply, p. 3), calls into doubt the authenticity of any document submi tted by H ome D epot as suppo rting ev idence .

ContraryContrary to Home DepotContrary to Home Depot s asseContrary to Home Depo

overchargeovercha rge a nd volun tarily refunded ththe amou nt the amount of the overcharge tha

Plaintiff sPlaintiff s lawsuit moPlaintiff s lawsuit mooPlaintiff s lawsuit moot since refunds

demonstratesdemonstrates that its advertisements were deceptive,5 and confers standing and con bring this representative action on behalf of himself and all others similarly situated.6

Furthermore,Furthermore, theFurtherm ore, the Status Re port Furthermore, the Status Re

injuredinjured and continues to injured and continues to be injured by the unreasonable delay in the Specific ally,Specifically, the Status Report sets forth an Inspection Plan Specifically, the Stat

inspectionsinspections to be completed in order for his projecinspections to be completed in or

noticenotice was given that any permit for the removal and replacement of a gas notice was give

PPlaintiff sPlaintiff s residence had been given and , as a conseq uence, no inspectioPlaintif

completed,completed, Plaintiff s continues to be injured sincecomplete d, Plaintiff s continues to be its passes the final inspection. (See Def. Exh ibit C, p. 10.) Dated: April 30, 2008 s/Patrick N. Keegan Patrick N. Keegan, Esq.

See, e.g., Allee v. Medrano (1974) 416 U.S. 802, 810-811 (claim for injunction not moot if possibility of recurrence).
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MoreovMoreover, proof of deceptive ads entitles Plaintiff to damages under the CLRA becausebecause h e sent by certified mail hisbecause h e sent by certified mail his pre-f iling dema nd and received no rep ly from Defendan t. (Suppl. Keegan D ecl., ¶3 & Exhibit 1.)
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Kagan v. Gibraltar SavingsKagan v. Gibraltar Savings and LoanKaga n v. Gib raltar S avi La Sa la v. Am erican Sav. & L oan A ssn., 5 Cal.3d 864 (19 71).
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Supplemental O pposition to Mo tion to Dismiss

Attorney for Representative Plaintiff

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