Free Declaration - District Court of California - California

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

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Martin R. Boles (S.B.N. 124159) mboles~kirkland.com Mark T. Cramer (S.B.N. 198952) mcramer(fkirk1and.com Linda Bassett (S.B.N. 250279) Ibassett~kirk1and.com KIRKÃND & ELLIS LLP 777 South Fig!eroa Street Los Angeles, California 90017
Telephone: (213) 680-8400 Facsimile: (213) 680-8500

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Attorneys for Defendant

HOME DEPOT U.S.A., INC.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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RICHARD STANFORD, individually and on behalf of all other persons similarly situated and on oehalf of the
general public,

) CASE NO. 07-CV-2193 LAB (WMC)
) ) ) )
) ) ) ) ) ) ) )

Class Action

Plaintiff,
vs.

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HOME DEPOT U.S.A., INCÖa Delaware corporation; and D ES 1
through 100, inclusive,

DECLARATION OF MARKT. CRAMER IN SUPPORT OF DEFENDANT HOME DEPOT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS THE FIRST

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AMENDED COMPLAINT
HONORABLE LARRY A. BURNS

Defendants.

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) ) ) ) ) ) ) )

HEARIG DATE: March 17, 2008

COURTROOM: 9

TIME: 10:30 a.m.

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1 I, Mark T. Cramer, hereby declare:

2 1. I am an attorney of law licensed to practice in the State of California. I
3 am a partner with the law firm of

Kirkland & Ellis, LLP, counsel to Home Depot

4 U.S.A., Inc. ("Home Depot") in this action. I make this declaration in support of
5 Home Depot's Reply to Its Motion to Dismiss the First Amended Complaint. I have
6 personal knowledge of the following facts, and if called upon as a witness, I could and

7 would competently testify to the matters stated herein.
8 2. On November 19,2007, I had a telephone conversation with Patrick

9 Keegan, counsel of record for Plaintiff Richard Stanford in the above-titled action. I
10 called Mr. Keegan to inform him that, contrary to the allegations in the original
11 complaint, a permit had been issued for the water heater installed at Plaintiff s home.
12 Mr. Keegan stated that he had previously contacted the City of

San Diego, but that

13 they had not been able to locate a copy of the permit. I told him that the copy of the

14 permit I had obtained did not have the Plaintiffs name on it, but it had Plaintiffs
15 home address and the name of the contractor who had applied for the permit. I also

16 told Mr. Keegan the date the permit indicated that it had been issued, which pre-dated

17 the filing of the lawsuit. Mr. Keegan said he would get back in touch with the City of
18 San Diego and would "look into it." He.did not ask me to send him a copy of

the

19 permit. If

he had, I would have immediately faxed or emailed him a copy. My goal in

20 calling Mr. Keegan was to resolve any disputes about the permt as efficiently as

21 possible.
22 3. On February 7,2008, Mr. Keegan and I spoke as part of

the required

23 conference of counsel to finalize the Joint Report of Counsel Pursuant to Fed. R. Civ.

24 P.26 ("Joint Rule 26 Report") the parties needed to file with the Cour. During that
25 conversation, Mr. Keegan informed me that he believed the Special Services Invoice
26 attached as Exhibit B to Home Depot's Request for Judicial Notice in Support of

Its

27 Motion to Dismiss was different than the copy that Richard Stanford had received

28 when he purchased his water heater. Mr. Keegan said he believed that Home Depot
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had falsified the document filed in support of its Motion to Dismiss and may have

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perjured itself. I informed Mr. Keegan that the Special Services Invoice filed in
support of

Home Depot's Motion to Dismiss was generated from its computer system

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as the documents are maintained in the ordinary course of business and that I had

every reason to believe it was an accurate reprint. I asked Mr. Keegan to send me a
copy of the Special Services Invoice that Mr. Stanford had received, as well as any documents (like a credit card bill) that would show what Mr. Stanford actually paid

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for the water heater, so that we could sort out the alleged discrepancy. Mr. Keegan
agreed to send me these documents, though he indicated he did not want to engage in

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unilateral discovery. I responded that it wouldn't be unilateral discovery because Mr.
Keegan already had a copy of the invoice from Home Depot's files, but I did not have
a copy of

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the invoice from Mr. Stanford's files. My objective was to resolve any

issues regarding an alleged overcharge efficiently without burdening the Court.
4. Shortly after we ended our February 7, 2008 telephone conversation, we
sent Mr. Keegan a revised draft of

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the Joint Rule 26 Report, which included a

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reference to Plaintiff s agreement to provide us with a copy of his invoice and

documents evidencing the amount he actually paid for his water heater. Specifically,
in the section where Home Depot laid out its position with respect to the discovery

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plan, Home Depot noted, "Plaintiff has agreed to produce a copy of his invoice and
related documents evidencing the amount he paid for his water heater purchase,

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installation, and permit fee." But before we filed the Joint Rule 26 Report with the
Court, Mr. Keegan deleted the reference from the draft memorializing his agreement
to provide us with those documents.
5. I sent Mr. Keegan an e-mail asking him to explain why he had changed

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the revised draft of the Joint Rule 26 Report:
Patrick,

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Why did j'ou delete the reference we included that you agreed to ~r9duce
a cOPìí ofPlaintifts invoice and proof of

we ta ked earlier this evening, you agreed to provide that to us. I don't
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what he actually paid? When

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understand why you're deleting it now. Also, the assertion you added to the report that the exchange of information on this issue is somehow onefrom Home Depot's files because we attached it to our motion. On the other hand, you didn't attach a copy of Mr. Stanford's invoice to your complaint and we haven't seen a copy of the document that he has in his possession. That's what we discussea earlier and you agreed to send me a the amount Mr. Stanford actually paid in
copy of the invoice and proof of

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sided is not accurate. You already have a copy of Mr. Stanford's invoice

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position. . . . .
See Ex. A.

ordç~ to ~how whether he was overcharged. Are you changing your

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6. In his response, Mr. Keegan back-tracked on his agreement to provide
me with a copy of

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Plaintiffs Special Services invoice and credit card receipt. In

addition to continuing to allege that Home Depot had "falsely states (the amount)

charged," Mr. Keegan inaccurately claimed that I had refused to make a mutual
exchange of documents. See Ex. B.
7. Surprised by his email, and concerned that we would not reach an

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agreement before the deadline passed for filing the Joint Rule 26 Report, Ie-mailed
Mr. Keegan promptly, stating,
Patrick,

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l agr~ed to work with you to resolv~ any discrepancies with respect to the invoice. You have the copy of the invoice from our files and aOU agreed to provide us with the copy from your client. I haven't refuse to a "mutual exchange" of documents. I've refused to engage in full blown initial disclosures and discovery while our motion is pending. Having said that, I'm willing to cooperate with you (including exchanging limited and focused types of documents) to get to the bottom of your overcharge claim. Are you reneging on your agreement to send us a copy of Mr. Stanford's invoice ana proof of the amount he paid? I don't understand your reluctance to provide that to us. You could have sent us the aocument in less time than we've spent having this email exchange. . . .
See Ex. C.

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Additionally, I left a voicemail for Mr. Keegan asking him to call me so that we
could resolve the issue before the filing deadline for the Joint Rule 26 Report passed.
Mr. Keegan did not respond. As such, Home Depot was forced to file the draft of the

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Joint Rule 26 Report that Mr. Keegan edited and signed, despite disagreeing with
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some of his characterizations of the facts.
8. After filing the Joint Rule 26 Report, I sent Mr. Keegan a final e-mail

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stating,

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Patrick,
I'm at a loss. When we talked earlier tonight, you agreed to provide your

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client's copy of his invoice, as well as evidence of tlie amount he actually paid for his water heater, installation) and permit (such as a credit card receipt). You didn't make that promise on the condition that Home Depot provide some sort of discovery in return. Indeed, we discussed how you already had a copy of the invoice from Home Depot's files because it was attached to Home Depot's moving papers. Moreover you didn't identify or request any additional documentation you needed from Home Depot in order to verity the allount that your client was charged and actually paid for the transaction at issue In this case.
You've made very serious allegations against Home Depot today, going

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so far as to accuse the company of "perjuring itself' and "falsifýing" the invoice document it submitted with its motion to dismiss. I do not take those allegations lightlYi which is why I asked you to send me your the Invoice as soon as possible to see how, if at all, the two invoices differ. You agreed to provide that information when we talked, but at some point between our conversation and the deadline for filing the joint report, you seem to have changed your mind. You didn't
client's copy of

respond to my voicemail or my: email below Defore the filing deadline

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passed, so we went ahead and filed the version of the j oint report you previouslj' signed, despite the fact that that version includes a change you made to Home Depot's portion of the joint report and despite the fact that the sentence you deleted from Home Depot's section was accurate.

You and I should talk tomorrow. I hope what happened today is an isolated occurrence and not your standard practice.
See Ex. D.

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9. Mr. Keegan never responded. The first time I saw Richard Stanford's
copy of the Special Services Invoice was when it was filed as Exhibit A to Plaintiff s
Opposition to Defendant's Motion to Dismiss Pursuant to Rule 12(b)(6).
10. Attached as Exhibits A through D are true and correct copies of

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the email

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correspondence that took place on February 7-8,2008, and set forth above.
III III III III
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11. Attached as Exhibit E is a true and correct copy of a letter sent by Patrck
Keegan to Home Depot on July 2,2007, alleging that Home Depot violated the
Consumer Legal Remedies

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Act by failing to obtain permits. I received the attached

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copy of

this letter from Mr. Keegan on February 8,2008.
I declare under penalty of perjury that the foregoing is true and correct and that

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this declaration was executed on March 10, 2008, at Los Angeles, California.

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Isl Mark Cramer
Mark Cramer

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CERTIFICATE OF SERVICE
I hereby certify that I have electronically re- filed the foregoing

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DECLARTION OF MAR T. CRAER IN SUPPORT OF DEFENDANT
HOME DEPOT'S REPLY IN SUPPORT OF ITS MOTION TO DISMISS THE
FIRST AMENDED COMPLAINT with the Clerk of the Court using the CM/ECF
system, which will automatically send email notification of such filing with to the
following attorney of record:
Patrick N. Keegan, Esq. pkeegan(fkmb-Iaw.com Brent Jex, Esq. KEEGAN & BAKR, LLP 4370 La Jolla Village Drive, Suite 640 San Diego, CA 92122
Phone: (858) 552-6750
Fax: (858) 552-6749

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Executed March 12,2008, at Los Angeles, California.

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/s/ Mark Cramer Attorn~ for Defendant,

Home Depot U.S.A., Inc.
E-mail: mcramer(fkirkland.com

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07-CY-02193