Free Affidavit - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 CHRISTOPHER E. KRUEGER Senior Assistant Attorney General 3 STEPHEN P. ACQUISTO Supervising Deputy Attorney General 4 JILL BOWERS, State Bar No. 186196 Deputy Attorney General 1300 I Street, Suite 125 5 P.O. Box 944255 Sacramento, CA 94244-2550 6 Telephone: (916) 323-1948 Fax: (916) 324-5567 7 Email: [email protected] 8 Attorneys for Defendant Governor's Office 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 OAKLAND DIVISION 12 13 14 15 16 17 18 19 1. I am a lawyer admitted to practice in the State of California. I am employed by v. CITY OF OAKLAND, et al., Defendants. Judge: The Hon. Claudia Wilken JOHN PHILLIPS, Plaintiff, Case No. C07-03885-CW DECLARATION OF JILL BOWERS, ESQ. Re: RULE 26(f) REPORT

20 the California Department of Justice as a Deputy Attorney General, and am assigned to represent 21 Defendant Governor Arnold Schwarzenegger in the captioned case. 22 2. This declaration is based on my personal knowledge, except as to those matters

23 stated on information and belief, and as to those matters I believe them to be true, and would so 24 testify if called upon. The source of my information and belief is review of the record in this 25 case. 26 3. On July 30, 2007, the Court issued the Order Setting Initial Case Management

27 Conference and ADR Deadlines. Ex. A, attached. The July 30th Order set October 31, 2007, as 28 the deadline for filing the Rule 26(f) report, completing initial disclosures or stating objections
Declaration Re: Rule 26(f) Report Phillips v. City of Oakland, et al. C07-03885-CW

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1 and filing a case management conference statement. Id. The initial Case Management 2 Conference was scheduled for November 7, 2007. Id. 3 4. On September 27, 2007, this case was reassigned to the Honorable Claudia

4 Wilken, United States District Judge, and the November 7th Case Management Conference date 5 was vacated. Ex. B, attached. On October 4, 2007, the Case Management Scheduling Order for 6 Reassigned Civil Case rescheduled the Case Management Conference for November 8, 2007, 7 and set November 1, 2007, as the deadline for filing the Case Management Conference 8 Statement. Ex. C, attached. 9 5. The October 4th Case Management Scheduling Order for Reassigned Civil Case

10 does not expressly vacate the October 17 and 31, 2007, deadlines to meet and confer about Rule 11 26(f) disclosure and alternative dispute resolution (ADR), set in the July 30th Order Setting 12 Initial Case Management Conference and ADR Deadlines. Ex. C. On September 28, 2007, I 13 therefore sought the parties' agreement to a request for relief from the July 30th case management 14 schedule. Ex. D, attached. Defendant City of Oakland replied affirmatively and signed the 15 stipulation I proposed, but, to date, Plaintiff John Phillips has not responded to my September 16 28th inquiry. 17 6. Defendant will file and serve an ex parte notice of request for an ADR telephone

18 conference, suggesting that ADR is inappropriate in this case, and that ADR, if any, be deferred 19 until after the Court has ruled on pending motions to dismiss filed by both the Governor and the 20 City of Oakland. 21 7. Defendant will also file a separate Case Management Conference Statement,

22 pursuant to Civil Local Rule 16-9(a), in which the following case management schedule, 23 including a schedule for Rule 26(f) disclosures, is proposed: 24 25 26 27 28 (a) The last day to meet and confer re: initial disclosures, early settlement, ADR process selection, and discovery plan, shall be 90 days after entry of the order denying the dispositive motion last filed by any party attacking the pleadings that is pending on the date the case management order is entered. Fed. R. Civ. P. 26(f);
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ADR L.R. 3-5. (b) Discovery may commence on this Court's issuance of an order approving the parties' joint discovery plan, and shall be completed not later than 180 days from the date of that order or on the date specified in the plan, whichever is later. All discovery demands shall be served so that responses may be served before the close of the discovery period. Any motions regarding discovery disputes shall be noticed so that they may be heard before the close of the discovery period. These deadlines may be changed by stipulation of the parties without the necessity for a hearing. (c) Dispositive motions shall be filed and served not later than 120 days following the close of discovery. (d) The pretrial conference shall be held not sooner than 45 days following this Court's ruling on any party's dispositive motions last-filed during the period described in paragraph 7(c). (e) Trial shall be set no earlier than 60 days following the pretrial conference. Motions in limine and other pretrial motions shall be noticed so as to be heard before the date set for commencement of trial. I declare under penalty of perjury that the foregoing is true and correct. Executed November 5, 2007, in the City of Sacramento, County of Sacramento, State

22 of California. 23 24 25 26 27 28
Declaration Re: Rule 26(f) Report Phillips v. City of Oakland, et al. C07-03885-CW
Decl. Bowers.wpd SA2007102364

/s/ JILL BOWERS, DEPUTY ATTORNEY GENERAL DECLARANT COUNSEL FOR DEFENDANT SCHWARZENEGGER

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EXHIBIT A

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

JOHN PHILLIPS,
No. C 07-03885 JL Plaintiff (s), v.

CITY OF OAKLAND, CALIFORNIA,
Defendant(s).

ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE AND ADR DEADLINES

IT IS HEREBY ORDERED that this action is assigned to the Honorable James Larson. When serving the complaint or notice of removal, the plaintiff or removing defendant must serve on all other parties a copy of this order, the handbook entitled ADispute Resolution Procedures in the Northern District of California@ , the Notice of Assignment of Case to a United States Magistrate Judge for Trial, and all other documents specified in Civil Local Rule 4-2. Counsel must comply with the case schedule listed below unless the Court otherwise orders. IT IS FURTHER ORDERED that this action is assigned to the Alternative Dispute Resolution (ADR) Multi-Option Program governed by ADR Local Rule 3. Counsel and clients shall familiarize themselves with that rule and with the handbook entitled ADispute Resolution Procedures in the Northern District of California.@

CASE SCHEDULE -ADR MULTI-OPTION PROGRAM
Date Event Governing Rule

7/30/2007 10/17/2007

Complaint filed
Last day to: $ meet and confer re: initial disclosures, early settlement, ADR process selection, and discovery plan $ file Joint ADR Certification with Stipulation to ADR Process or Notice of Need for ADR Phone Conference FRCivP_26(f) & ADR L.R.3-5 Civil_L.R. 16-8 FRCivP 26(a) (1) Civil _L.R . 16-9

10/31/2007

Last day to file Rule 26(f) Report, complete initial disclosures or state objection in Rule 26(f) Report and file Case Management Statement per attached Standing Order re Contents of Joint Case Management Statement (also available at http://www.cand.uscourts.gov)

11/7/2007

INITIAL CASE MANAGEMENT CONFERENCE (CMC) in Ctrm F,15th Floor,SF at 10:30 AM

Civil _L.R. 16-10

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EXHIBIT B

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UNITED STATES DISTRICT COURT Northern District of California 450 Golden Gate Avenue San Francisco, California 94102

_____________

www.cand.uscourts.gov Richard W. Wieking Clerk General Court Number 415.522.2000

September 27, 2007 CASE NUMBER: CV 07-03885 JL CASE TITLE: JOHN PHILLIPS-v-CITY OF OAKLAND, CALIFORNIA REASSIGNMENT ORDER GOOD CAUSE APPEARING THEREFOR, IT IS ORDERED that this case is reassigned to the OAKLAND division. Honorable CLAUDIA WILKEN for all further proceedings. Counsel are instructed that all future filings shall bear the initials CW immediately after the case number. ALL MATTERS PRESENTLY SCHEDULED FOR HEARING ARE VACATED AND SHOULD BE RENOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THE CASE HAS BEEN REASSIGNED.
Date: 09/27/07 FOR THE EXECUTIVE COMMITTEE: ________________________________ Clerk

NEW CASE FILE CLERK: Copies to: Courtroom Deputies Log Book Noted CASE SYSTEMS ADMINISTRATOR: Copies to: All Counsel Special Projects Entered in Computer 09/27/07 MAB

Transferor CSA

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EXHIBIT C

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1 2 3 4 5 6 7 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 JOHN PHILLIPS, 11 Plaintiff, 12 v. 13 CITY OF OAKLAND, CALIFORNIA, et al., 14 Defendants. 15 16 This action having been reassigned to the undersigned judge, 17 IT IS HEREBY ORDERED that a case management conference will be 18 held on November 8, 2007, at 2:00 p.m. in Courtroom 2, 4th Floor, 1301 19 Clay Street, Oakland, CA 20 joint Case Management Statement will be due seven (7) days prior to 21 the conference (see Appendix A to Civil Local Rules). 22 Defendant Arnold Schwarzenegger's Motion to Dismiss Pursuant to 23 Federal Rules of Civil Procedure Rule 12(b)(6) and Defendant City of 24 Oakland's Motion to Dismiss Complaint will also be held on November 25 8, 2007, at 2:00 p.m. 26 due October 18, 2007, and any reply brief by Defendants will be due 27 October 25, 2007. 28 Failure by Plaintiff to timely file opposition to Plaintiff's opposition to the motions will be A hearing on 94612. Pursuant to Civil L.R. 16-9(a), a / CASE MANAGEMENT SCHEDULING ORDER FOR REASSIGNED CIVIL CASE No. C 07-03885 CW IN THE UNITED STATES DISTRICT COURT

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the motions may result in granting of the motions. If the hearing is inconveniently scheduled, it may be rescheduled by agreement of all parties to another date or time convenient to the Court's calendar. At the conclusion of the conference, an order will be entered setting dates either for a further case management conference, or for close of discovery, pretrial conference, and trial. Other orders

regulating and controlling future proceedings may be entered. Plaintiff shall serve copies of this Order at once on all parties to this action, and on any parties subsequently joined, in accordance with Fed. R. Civ. P. 4 and 5. Following service, Plaintiff shall file a certificate of service with the Clerk of this Court. FAILURE TO COMPLY WITH THIS ORDER may be deemed sufficient grounds for dismissal of this cause, default or other appropriate sanctions. See Fed. R. Civ. P. 16(f).

See attached for standard procedures. IT IS SO ORDERED.

Dated: 10/4/07

_______________________________ CLAUDIA WILKEN United States District Judge

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 (rev. 3/9/07) 22 23 24 25 26 27 28 All DISCOVERY MOTIONS are referred to a Magistrate Judge to be heard and considered at the convenience of his/her calendar. All such matters shall be noticed by the moving party for hearing on the assigned Magistrate Judge's regular law and motion calendar, or pursuant to that Judge's procedures. Motions for Summary Judgment: All issues shall be contained within one motion of 25 pages or less, made on 35 days notice. (See Civil L.R. 7-2). Separate statements of undisputed facts in support of or in opposition to motions for summary judgment will not be considered by the Court. (See Civil Local Rule 56-2(a)). The motion and opposition should include a statement of facts supported by citations to the declarations filed with respect to the motion. Evidentiary and procedural objections shall be contained within the motion, opposition or reply; separate motions to strike will not be considered by the Court. Any cross-motion shall be contained within the opposition to any motion for summary judgment, shall contain 25 pages or less, and shall be filed 21 days before the hearing. The reply to a motion may contain up to 15 pages, shall include the opposition to any cross-motion, and shall be filed 14 days before the hearing. (See Civil Local Rule 7-3). The Court may, sua sponte or pursuant to a motion under Civil L.R. 6-3, reschedule the hearing so as to give a moving party time to file a reply to any cross-motion. Case Management Conferences and Pretrial Conferences are conducted on Tuesdays at 2:00 p.m. Criminal Law and Motion calendar is conducted on Wednesdays at 2:00 p.m. for defendants in custody and 2:30 p.m. for defendants not in custody. Civil Law and Motion calendar is conducted on Thursdays at 2:00 p.m. Order of call is determined by the Court. Counsel need not reserve a hearing date for civil motions; however, counsel are advised to check the legal newspapers or the Court's website at www.cand.uscourts.gov for unavailable dates. NOTICE

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STANDING ORDER FOR ALL JUDGES OF THE NORTHERN DISTRICT OF CALIFORNIA CONTENTS OF JOINT CASE MANAGEMENT STATEMENT

3 4 5 6 7 8 9 10 11 4. 12 13 14 15 16 17 18 19 9. 20 21 22 23 24 25 26 27 28 13. Consent to Magistrate Judge For All Purposes: Whether all parties will consent to have a magistrate judge conduct all further proceedings including trial and entry of judgment. 14. Other References: Whether the case is suitable for reference to binding arbitration, a special 12. Settlement and ADR: Prospects for settlement, ADR efforts to date, and a specific ADR plan for the case, including compliance with ADR L.R. 3-5 and a description of key discovery or motions necessary to position the parties to negotiate a resolution. 10. Related Cases: Any related cases or proceedings pending before another judge of this court, or before another court or administrative body. 11. Relief: All relief sought through complaint or counterclaim, including the amount of any damages sought and a description of the bases on which damages are calculated. In addition, any party from whom damages are sought must describe the bases on which it contends damages should be calculated if liability is established. Class Actions: If a class action, a proposal for how and when the class will be certified. 8. Discovery: Discovery taken to date, if any, the scope of anticipated discovery, any proposed limitations or modifications of the discovery rules, and a proposed discovery plan pursuant to Fed. R. Civ. P. 26(f). 5. Amendment of Pleadings: The extent to which parties, claims, or defenses are expected to be added or dismissed and a proposed deadline for amending the pleadings. 6. Evidence Preservation: Steps taken to preserve evidence relevant to the issues reasonably evident in this action, including interdiction of any document-destruction program and any ongoing erasures of e-mails, voice mails, and other electronically-recorded material. 7. Disclosures: Whether there has been full and timely compliance with the initial disclosure requirements of Fed. R. Civ. P. 26 and a description of the disclosures made. Motions: All prior and pending motions, their current status, and any anticipated motions. 2. Facts: A brief chronology of the facts and a statement of the principal factual issues in dispute. 3. Legal Issues: A brief statement, without extended legal argument, of the disputed points of law, including reference to specific statutes and decisions. Commencing March 1, 2007, all judges of the Northern District of California require the identical information in Joint Case Management Statements filed pursuant to Civil Local Rule 16-9. The parties must include the following information in their statement which, except in unusually complex cases, should not exceed ten pages: 1. Jurisdiction and Service: The basis for the court's subject matter jurisdiction over plaintiff's claims and defendant's counterclaims, whether any issues exist regarding personal jurisdiction or venue, whether any parties remain to be served, and, if any parties remain to be served, a proposed deadline for service.

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master, or the Judicial Panel on Multidistrict Litigation. 15. Narrowing of Issues: Issues that can be narrowed by agreement or by motion, suggestions to expedite the presentation of evidence at trial (e.g., through summaries or stipulated facts), and any request to bifurcate issues, claims, or defenses. 16. Expedited Schedule: Whether this is the type of case that can be handled on an expedited basis with streamlined procedures. 17. Scheduling: Proposed dates for designation of experts, discovery cutoff, hearing of dispositive motions, pretrial conference and trial. 18. Trial: Whether the case will be tried to a jury or to the court and the expected length of the trial.

19. Disclosure of Non-party Interested Entities or Persons: Whether each party has filed the "Certification of Interested Entities or Persons" required by Civil Local Rule 3-16. In addition, each party must restate in the case management statement the contents of its certification by identifying any persons, firms, partnerships, corporations (including parent corporations) or other entities known by the party to have either: (i) a financial interest in the subject matter in controversy or in a party to the proceeding; or (ii) any other kind of interest that could be substantially affected by the outcome of the proceeding. 20. Such other matters as may facilitate the just, speedy and inexpensive disposition of this matter.

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1 2 3 PHILLIPS et al, 4 Plaintiff, 5 v. 6

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV07-03885 CW CERTIFICATE OF SERVICE CITY OF OAKLAND, CALIFORNIA et al,

7 Defendant. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jill Bowers Office of the Attorney General 1300 I Street PO Box 944255 Sacramento, CA 94244-2550 John Phillips 2337 Ransom Avenue Oakland, CA 94601-3827 Rachel Wagner Office of the City Attorney, Oakland One Frank H. Ogawa Plaza, 6th Floor Oakland, CA 94612 Dated: October 4, 2007 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk /

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 4, 2007, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

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EXHIBIT D

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: Phillips v. City of Oakland, et al.

C07-03885-CW

I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On November 5, 2007, I served the attached DECLARATION OF JILL BOWERS, ESQ. Re: RULE 26(f) REPORT by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: John Richard Phillips 2337 Ransom Avenue Oakland, CA 94601-3827

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on November 5, 2007, at Sacramento, California.

Rachel Aldred Declarant
10393990.wpd

/s/ Signature