Response and Partial Oppositon to Plainitff's Motion to Change Time re [33]; Declaration of Ryan Marcroft in Support filed by Jacob A Appelsmith, Edmund Brown, Jr, William Haraf, Kamala Harris, Traci Stevens, Robert Venchiarutti. (Marcroft, Ryan) (Filed on 3/14/2012) Text modified, linkage added on 3/15/2012 (bw, COURT STAFF).
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Page 1 Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page1 of 9
1
KAMALA D. HARRIS
Attorney General of California
2
PETER SOUTHWORTH
3
RYAN MAR CROFT
Supervising Deputy Attorney General
4
5
6
7
Deputy Attorney General
State Bar No. 230952
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 323-5313
Fax: (916) 324-8835
E-mail: Ryan.Marcroft@doj.ca.gov
Attorneysfor All Defendants
8
9
IN THE UNITED STATES DISTRICT COURT
10
FOR THE NORTHERN DISTRICT OF CALIFORNIA
11
SAN JOSE DIVISION
12
13
THINK COMPUTER CORPORATION,
14
15
Plaintiff,
v.
16
17
18
19
20
21
22
23
24
25
26
5: 11-cv-05496-HRL
ROBERT VENCHIARUTTI, in his official
capacity as Deputy Commissioner of the
California Department of Financial
Insti~utions; WILLIAM HARAF, in his
official capacity as Commissioner of the
California Department of Financial
Institutions; TRACI STEVENS, in her
official capacity as Acting Secretary of the
California Business, Transportation an~
Housing Agency; JACOB A.
APPELSMITH, in his official capacity as
Senior Advisor to the Governor of the State
of California; EDMUND G. BROWN, JR.,
in his official capacity as Governor of the
State of California; and KAMALA
HARRIS, in her official capacity as
Attorney General of the State of California,
STATE DEFENDANTS' RESPONSE AND
PARTIAL OPPOSITION TO
PLAINTIFF'S MOTION TO CHANGE·
TIME; DECLARATION OF RYAN
MARCROFT IN SUPPORT
Judge
The Honorable Howard R. Lloyd
Trial Date: Not Set
Action Filed: November 14, 2011
Defendants.
27
28
Response and Partial Opposition to Motion to Change Time (5: 11-cv-05496-HRL)Page 2 Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page2 of 9
1
Defendants ROBERT VENCHIARUTTI, in his official capacity as Deputy Commissioner
2
of the California Department of Financial Institutions, WILLIAM HARAF, in his official
3
capacity as Commissioner of the California Department of Financial Institutions, TRACI
4
STEVENS, in her official capacity as Acting Secretary of the California Business, Transportation
5
and Housing Agency, JACOB A. APPELSMITH, in his official capacity as Senior Advisor to the
6
Governor ofthe State of California, EDMUND G. BROWN, JR., in his official capacity as
7
Governor of the State of California, and KAMALA HARRIS, in her official capacity as Attorney
8
General ofthe State of California (collectively, the"State Defendants") hereby file this Response
9
and Partial Opposition to the Plaintiffs Motion to Change Time Of Oral Argument Concerning
10
Defendants' Motion to Dismiss and Scheduling Conference (Docket No. 33) in order to clarify
11
the State Defendants' position regarding the Plaintiffs requests.
The State Defendants do not oppose (nor did th~y join) the Plaintiffs request to advance
12
13
the hearing date on the State Defendants' Motion to Dismiss the First Amended Complaint.
14
(Docket No. 24.) The State Defendants do, however, oppose the Plaintiffs request to advance the
15
initial Case Management Conference, and respectfully request that the Court consider
16
rescheduling that event, if at all, only after the hearing on the Motion to Dismiss.
17
Discussion
18
Upon an oral inquiry from Plaintiff, the State Defendants indicated that they would not
19
oppose a request by Plaintiff that the Court advance the hearing date for the State Defendants'
20
Motion to Dismiss. Declaration of Ryan Marcroft ("Marcroft Declaration") [filed herewith] at
21
~
3. Because, however, the Court sua sponte changed the date of the hearing to April17, 2012,
22
·the State Defendants informed Plaintiffs counsel that they would not agree to ''affirmatively
23
·stipulate to a different hearing date." Marcroft Declaration at~ 3. Nonetheless, the State
24
Defendants authorized Plaintiffs counsel to "represent to the Court that the state does not oppose
25
having the matter heard on an earlier date." Id.
26
The parties, however, did not discuss any request to advance the initial Case Management
27
Conference, and the State Defendants oppose that request. Id. They object to the additional
28
expense anq burden of preparing for that conference and its associated requirements (initial
1
Response and Partial Opposition to Motion to Change Time (5: 11-cv-05496-HRL)Page 3 Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page3 of 9
1
disclosures and the opening of discovery) prior to a hearing on their motion to dismiss. Pla~ntiff
2
has already conceded that claims against certain defendants will be dismissed and the State
3
Defendants contend that the motion to dismiss should dispose of this entire action: (Docket
4
No. 30 at 1 n. 2.)
5
Nor is Plaintiffs suggested rush to a Case Management Conference even practical. For
6
instance, the Plaintiff requested that the Court advance the initial Case Management Conference
7
to as early as next Tuesday, leaving insufficient time to meet and confer and prepare and file a
8
statement.
9
In any event, the Plaintiffs various explanations for advancing the Case Management
10
Conference are not convincing. The Plaintiff states that its operations have "been shut down
11
since July 1, 2011." (Docket No. 33 at 2.) Now, suddenly, the Plaintiff states that the Court must
12
reschedule the Case Management Conference to as early as next Tuesday because of the
13
"irreparable harm with each passing week." (Docket No. 33 at 1.) The Plaintiffs own averments
14
belie its stated concern that it is. suddenly suffering any "irreparable harm."
15
Moreover, the case management conference has already been postponed for over three
16
months without objection by Plaintiff and the continuances have aided the orderly management of
17
this action. On January 3, 2012, the State Defendants filed an u.rlopposed motion for
18
administrative relief to continue the case management conference from January 10 to January 31,
19
2012. (Docket No. 13 at 2.) The Court granted that motion. (Docket No. 14.) Then, on
20
January 12, 2012, the parties jointly stipulated to extend the State Defendants' time to answer or
21
otherwise respond to the initial complaint to January 23, 2012, and the Court approved the
22
stipulation. (Docket No. 18.) The Court also continued the Case Management Conference by
23
another month, to February 28, 2012. (ld.) The Plaintiff did not object to this continuance. On
24
January 23, 2012, after the parties met and conferred regarding the original complaint, they
25
stipulated that the Plaintiff would file an amended complaint by January 31, 2012. The <;:ourt
26
approved this stipulation, and again sua sponte continued the Case Management Conference to
27
April 17, 2012. (Docket 22 at 3.) The Plaintiff did not object to this further continuance. The
28
Plaintiff filed its First Amended Complaint on January 31, 2012. (Docket No. 23.) The State
2
Response and Partial Opposition to Motion to Change Time (5:11-cv-05496-HRL)Page 4 Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page4 of 9
1
Defendants filed their motion to dismiss on February 14, 2012 (Docket No. 24), the Plaintiff filed
2
its response and opposition on February 28, 2012 (Docket No. 30), and the State Defendants filed
3
their reply on March 6, 2012 (Docket No. 31). Thereafter, this Court sua sponte continued the
4
Case Management Conference to its present date, May 29, 2012.
5
In total, the Court has previously continued the Case Management Conference for over
6
three months, without objection by Plaintiff. The State Defendants appreciate the cooperation
7
between the parties that resulted in the above stipulations and led the court to repeatedly (and
8
prudently) postpone the Case Management Conference, but also submit that Plaintiffs new
9
attempt to rush to that event and, apparently, commence initial disclosures and discovery is
10
inconsistent with its prior actions.
11
The Plaintiff also suggests that the Court should consider the health insurance contract for
12
its president, which "is up for renewal within the next three months," and is now-purportedly
13
under a "cloud of uncertainty caused by the State Defendants." (Docket No. 33 at 3.) The Court
14
should disregard this assertion. First, the factual claiin that the insurance contract "is up for
15
renewal" is unsupported by any evidence, including the declaration of the Plaintiffs president.
16
(Id. at Exhibit B
17
company would refuse to renew its contract. (Jd.) Instead, the president states, "[t]o the best of
18
my knowledge, think Computer Corporation's insurance provider requires that the company have
19
at least two California W-2 employees for its contract to be renewed." (!d.) (Emphasis added.)
20
Lastly, this subjective claim is based entirely on whether the Plaintiffs president feels he can
21
"more definitively know that the company has some prospect for resuming operations." (!d.)
22
This subjective assertion should not guide the Court's management of this action.
23
~
5.) Second, the Plaintiffs president has not even verified that its insurance
Finally, the Plaintiff states that the Court should "give the parties the opportunity to present
24
and solve the issues at hand while all parties to these proceedings are still available," and cites to
25
the reported resignation of one of the official capacity defendants, Commissioner Haraf. (Docket
26
No. 33 at 2.) That will not affect this action, since, as a public official, his successor in office will
27
be automatically substituted as a party. (Fed.R.Civ.Pro., Rule 25(d).)
28
///
3
Response and Partial Opposition to Motion to Change Time (5:11-cv-05496-HRL)Page 5 Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page5 of 9
1
2
Conclusion
The State Defendants presume that the Court selected an appropriate date for the hearing on
3
their motion to dismiss, but they do not oppose the Plaintiffs request to advance that hearing
4
date. They likewise presume that the Court selected the subsequent date for the initial Case
5
Management Conference to follow the hearing on that motion and provide for the orderly
6
administration of this action. They therefore oppose Plaintiffs request to advance the Case
7
Management Conference.
8
Dated: March 14, 2012
Respectfully Submitted,
9
KAMALA D. HARRIS
Attorney General of California
10
PETER SOUTHWORTH
11
Supervising Deputy Attorney General
12
13
Is! Ryan Marcroft
14
RYAN MARCROFT
15
Deputy Attorney General
Attorneys for All Defendants
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Response and Partial Opposition to Motion to Change Time (5:11-cv-05496-HRL)Page 6 Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page6 of 9
1
Declaration of Ryan Marcroft
2
I, Ryan Marcroft, declare as follows:
3
1.
I am a Deputy Attorney General and counsel of record for Defendants ROBERT
4
VENCHIARUTTI, in his official capacity as Deputy Commissioner of the California Department
5
of Financial Institutions, WILLIAM HARAF, in his official capacity as Commissioner ofthe
·6
California Department of Financial Institutions, TRACI STEVENS, in her official capacity as
7
Acting Secretary of the California Business, Transportation and Housing Agency, JACOB A.
8
APPELSMITH, in his official capacity as Senior Advisor to the Governor of the State of
9
California, EDMUND G. BROWN, JR., in his official capacity as Governor of the State of
10
California, and KAMALA HARRIS, in her official capacity as Attorney General of the State of
11
California (collectively, the "State Defendants"). I am submitting this declaration in support of
12
the State Defendants' Response and Partial Opposition to Plaintiffs Motion to Change Time.
13
(Docket No. 33.)
14
2.
On March 12, 2012, the Clerk filed and served electronically a Notice ReMotion
15
Hearing and Initial Case Management Conference (Docket No. 32), continuing the hearing date
16
on the State Defendants' Motion to Dismiss (Docket No. 24) to April 17, 2012. The Court further
17
continued the initial Case Management Conference to May 29, 2012. (Docket No. 32.)
18
"'
.).
On March 13, 2012, Michael Brooks Carroll, counsel for Think Computer
19
Corporation in this action, left a voicemail for me stating that he wanted to discuss whether the
20
state would stipulate to a request for an order shortening the time for hearing. In response, I
21
emailed Mr. Carroll that "I received [his] voicemail requesting that the state consider stipulating
22
to shortening the time for the hearing on the state's motion to dismiss." Attached as Exhibit A is
23
a true and correct copy of the email I sent to Mr. Canoll. I further stated that the Court sua
24
sponte changed the hearing date from March 27, 2012 to April17, 2012, and that we presumed
25
that the Court changed the hearing date because it found that date to be appropriate for the State
26
Defendants' motion. Exhibit A. For this reason, I declined to affirmatively stipulate to a
27
different hearing date, but I permitted Mr. Carroll to "represent to the Court that the state does not
28
oppose having the matter heard on an earlier date." Id. I did not discuss with Mr. Carroll the
5
Response and Pmtial Opposition to Motion to Change Time (5: 11-cv-05496-HRL)Page 7 Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page7 of 9
1
Plaintiffs request to shorten the date for the initial Case Management Conference, nor did I
2
discuss with Mr. Carroll any of the reasons articulated for the Plaintiffs current motion.
3
4
I declare that the foregoing is true and correct under penalty of perjury under the laws of the
United States of America.
5
6
Date: March 14, 2012
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27.
28
6
Response and Partial Opposition to Motion to Change Time (5:11-cv-05496-HRL)Page 8 Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page8 of 9
1.
EXHIBIT APage 9 Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page9 of 9
From:
To:
Date:
Subject:
Ryan Marcroft
Michael, Law Office of
3/13/2012 3:36 PM
Think Computer Corporation
Mike, I received your voicemail requesting that the state consider stipulating to shortening the time for
the hearing on the state's motion to dismiss. The state noticed the motion for a hearing on March 27,
2012, and the Court sua sponte changed the hearing date to April 17, 2012. We presume that the Court
changed the hearing date to April 17, 2012 because it found that to be an appropriate hearing date for
this motion, and so we are not inclined to affirmatively stipulate to a different hearing date.
Nonetheless, you may represent to the Court that the state does not oppose having the matter heard on
an earlier date.
Sincerely,
Ryan Marcroft
Deputy Attorney General
Office of the Attorney General
(916) 323-5313
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page1 of 9
1
KAMALA D. HARRIS
Attorney General of California
2
PETER SOUTHWORTH
3
RYAN MAR CROFT
Supervising Deputy Attorney General
4
5
6
7
Deputy Attorney General
State Bar No. 230952
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 323-5313
Fax: (916) 324-8835
E-mail: Ryan.Marcroft@doj.ca.gov
Attorneysfor All Defendants
8
9
IN THE UNITED STATES DISTRICT COURT
10
FOR THE NORTHERN DISTRICT OF CALIFORNIA
11
SAN JOSE DIVISION
12
13
THINK COMPUTER CORPORATION,
14
15
Plaintiff,
v.
16
17
18
19
20
21
22
23
24
25
26
5: 11-cv-05496-HRL
ROBERT VENCHIARUTTI, in his official
capacity as Deputy Commissioner of the
California Department of Financial
Insti~utions; WILLIAM HARAF, in his
official capacity as Commissioner of the
California Department of Financial
Institutions; TRACI STEVENS, in her
official capacity as Acting Secretary of the
California Business, Transportation an~
Housing Agency; JACOB A.
APPELSMITH, in his official capacity as
Senior Advisor to the Governor of the State
of California; EDMUND G. BROWN, JR.,
in his official capacity as Governor of the
State of California; and KAMALA
HARRIS, in her official capacity as
Attorney General of the State of California,
STATE DEFENDANTS' RESPONSE AND
PARTIAL OPPOSITION TO
PLAINTIFF'S MOTION TO CHANGE·
TIME; DECLARATION OF RYAN
MARCROFT IN SUPPORT
Judge
The Honorable Howard R. Lloyd
Trial Date: Not Set
Action Filed: November 14, 2011
Defendants.
27
28
Response and Partial Opposition to Motion to Change Time (5: 11-cv-05496-HRL)
PDF Page 3
Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page2 of 9
1
Defendants ROBERT VENCHIARUTTI, in his official capacity as Deputy Commissioner
2
of the California Department of Financial Institutions, WILLIAM HARAF, in his official
3
capacity as Commissioner of the California Department of Financial Institutions, TRACI
4
STEVENS, in her official capacity as Acting Secretary of the California Business, Transportation
5
and Housing Agency, JACOB A. APPELSMITH, in his official capacity as Senior Advisor to the
6
Governor ofthe State of California, EDMUND G. BROWN, JR., in his official capacity as
7
Governor of the State of California, and KAMALA HARRIS, in her official capacity as Attorney
8
General ofthe State of California (collectively, the"State Defendants") hereby file this Response
9
and Partial Opposition to the Plaintiffs Motion to Change Time Of Oral Argument Concerning
10
Defendants' Motion to Dismiss and Scheduling Conference (Docket No. 33) in order to clarify
11
the State Defendants' position regarding the Plaintiffs requests.
The State Defendants do not oppose (nor did th~y join) the Plaintiffs request to advance
12
13
the hearing date on the State Defendants' Motion to Dismiss the First Amended Complaint.
14
(Docket No. 24.) The State Defendants do, however, oppose the Plaintiffs request to advance the
15
initial Case Management Conference, and respectfully request that the Court consider
16
rescheduling that event, if at all, only after the hearing on the Motion to Dismiss.
17
Discussion
18
Upon an oral inquiry from Plaintiff, the State Defendants indicated that they would not
19
oppose a request by Plaintiff that the Court advance the hearing date for the State Defendants'
20
Motion to Dismiss. Declaration of Ryan Marcroft ("Marcroft Declaration") [filed herewith] at
21
~
3. Because, however, the Court sua sponte changed the date of the hearing to April17, 2012,
22
·the State Defendants informed Plaintiffs counsel that they would not agree to ''affirmatively
23
·stipulate to a different hearing date." Marcroft Declaration at~ 3. Nonetheless, the State
24
Defendants authorized Plaintiffs counsel to "represent to the Court that the state does not oppose
25
having the matter heard on an earlier date." Id.
26
The parties, however, did not discuss any request to advance the initial Case Management
27
Conference, and the State Defendants oppose that request. Id. They object to the additional
28
expense anq burden of preparing for that conference and its associated requirements (initial
1
Response and Partial Opposition to Motion to Change Time (5: 11-cv-05496-HRL)
PDF Page 4
Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page3 of 9
1
disclosures and the opening of discovery) prior to a hearing on their motion to dismiss. Pla~ntiff
2
has already conceded that claims against certain defendants will be dismissed and the State
3
Defendants contend that the motion to dismiss should dispose of this entire action: (Docket
4
No. 30 at 1 n. 2.)
5
Nor is Plaintiffs suggested rush to a Case Management Conference even practical. For
6
instance, the Plaintiff requested that the Court advance the initial Case Management Conference
7
to as early as next Tuesday, leaving insufficient time to meet and confer and prepare and file a
8
statement.
9
In any event, the Plaintiffs various explanations for advancing the Case Management
10
Conference are not convincing. The Plaintiff states that its operations have "been shut down
11
since July 1, 2011." (Docket No. 33 at 2.) Now, suddenly, the Plaintiff states that the Court must
12
reschedule the Case Management Conference to as early as next Tuesday because of the
13
"irreparable harm with each passing week." (Docket No. 33 at 1.) The Plaintiffs own averments
14
belie its stated concern that it is. suddenly suffering any "irreparable harm."
15
Moreover, the case management conference has already been postponed for over three
16
months without objection by Plaintiff and the continuances have aided the orderly management of
17
this action. On January 3, 2012, the State Defendants filed an u.rlopposed motion for
18
administrative relief to continue the case management conference from January 10 to January 31,
19
2012. (Docket No. 13 at 2.) The Court granted that motion. (Docket No. 14.) Then, on
20
January 12, 2012, the parties jointly stipulated to extend the State Defendants' time to answer or
21
otherwise respond to the initial complaint to January 23, 2012, and the Court approved the
22
stipulation. (Docket No. 18.) The Court also continued the Case Management Conference by
23
another month, to February 28, 2012. (ld.) The Plaintiff did not object to this continuance. On
24
January 23, 2012, after the parties met and conferred regarding the original complaint, they
25
stipulated that the Plaintiff would file an amended complaint by January 31, 2012. The <;:ourt
26
approved this stipulation, and again sua sponte continued the Case Management Conference to
27
April 17, 2012. (Docket 22 at 3.) The Plaintiff did not object to this further continuance. The
28
Plaintiff filed its First Amended Complaint on January 31, 2012. (Docket No. 23.) The State
2
Response and Partial Opposition to Motion to Change Time (5:11-cv-05496-HRL)
PDF Page 5
Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page4 of 9
1
Defendants filed their motion to dismiss on February 14, 2012 (Docket No. 24), the Plaintiff filed
2
its response and opposition on February 28, 2012 (Docket No. 30), and the State Defendants filed
3
their reply on March 6, 2012 (Docket No. 31). Thereafter, this Court sua sponte continued the
4
Case Management Conference to its present date, May 29, 2012.
5
In total, the Court has previously continued the Case Management Conference for over
6
three months, without objection by Plaintiff. The State Defendants appreciate the cooperation
7
between the parties that resulted in the above stipulations and led the court to repeatedly (and
8
prudently) postpone the Case Management Conference, but also submit that Plaintiffs new
9
attempt to rush to that event and, apparently, commence initial disclosures and discovery is
10
inconsistent with its prior actions.
11
The Plaintiff also suggests that the Court should consider the health insurance contract for
12
its president, which "is up for renewal within the next three months," and is now-purportedly
13
under a "cloud of uncertainty caused by the State Defendants." (Docket No. 33 at 3.) The Court
14
should disregard this assertion. First, the factual claiin that the insurance contract "is up for
15
renewal" is unsupported by any evidence, including the declaration of the Plaintiffs president.
16
(Id. at Exhibit B
17
company would refuse to renew its contract. (Jd.) Instead, the president states, "[t]o the best of
18
my knowledge, think Computer Corporation's insurance provider requires that the company have
19
at least two California W-2 employees for its contract to be renewed." (!d.) (Emphasis added.)
20
Lastly, this subjective claim is based entirely on whether the Plaintiffs president feels he can
21
"more definitively know that the company has some prospect for resuming operations." (!d.)
22
This subjective assertion should not guide the Court's management of this action.
23
~
5.) Second, the Plaintiffs president has not even verified that its insurance
Finally, the Plaintiff states that the Court should "give the parties the opportunity to present
24
and solve the issues at hand while all parties to these proceedings are still available," and cites to
25
the reported resignation of one of the official capacity defendants, Commissioner Haraf. (Docket
26
No. 33 at 2.) That will not affect this action, since, as a public official, his successor in office will
27
be automatically substituted as a party. (Fed.R.Civ.Pro., Rule 25(d).)
28
///
3
Response and Partial Opposition to Motion to Change Time (5:11-cv-05496-HRL)
PDF Page 6
Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page5 of 9
1
2
Conclusion
The State Defendants presume that the Court selected an appropriate date for the hearing on
3
their motion to dismiss, but they do not oppose the Plaintiffs request to advance that hearing
4
date. They likewise presume that the Court selected the subsequent date for the initial Case
5
Management Conference to follow the hearing on that motion and provide for the orderly
6
administration of this action. They therefore oppose Plaintiffs request to advance the Case
7
Management Conference.
8
Dated: March 14, 2012
Respectfully Submitted,
9
KAMALA D. HARRIS
Attorney General of California
10
PETER SOUTHWORTH
11
Supervising Deputy Attorney General
12
13
Is! Ryan Marcroft
14
RYAN MARCROFT
15
Deputy Attorney General
Attorneys for All Defendants
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Response and Partial Opposition to Motion to Change Time (5:11-cv-05496-HRL)
PDF Page 7
Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page6 of 9
1
Declaration of Ryan Marcroft
2
I, Ryan Marcroft, declare as follows:
3
1.
I am a Deputy Attorney General and counsel of record for Defendants ROBERT
4
VENCHIARUTTI, in his official capacity as Deputy Commissioner of the California Department
5
of Financial Institutions, WILLIAM HARAF, in his official capacity as Commissioner ofthe
·6
California Department of Financial Institutions, TRACI STEVENS, in her official capacity as
7
Acting Secretary of the California Business, Transportation and Housing Agency, JACOB A.
8
APPELSMITH, in his official capacity as Senior Advisor to the Governor of the State of
9
California, EDMUND G. BROWN, JR., in his official capacity as Governor of the State of
10
California, and KAMALA HARRIS, in her official capacity as Attorney General of the State of
11
California (collectively, the "State Defendants"). I am submitting this declaration in support of
12
the State Defendants' Response and Partial Opposition to Plaintiffs Motion to Change Time.
13
(Docket No. 33.)
14
2.
On March 12, 2012, the Clerk filed and served electronically a Notice ReMotion
15
Hearing and Initial Case Management Conference (Docket No. 32), continuing the hearing date
16
on the State Defendants' Motion to Dismiss (Docket No. 24) to April 17, 2012. The Court further
17
continued the initial Case Management Conference to May 29, 2012. (Docket No. 32.)
18
"'
.).
On March 13, 2012, Michael Brooks Carroll, counsel for Think Computer
19
Corporation in this action, left a voicemail for me stating that he wanted to discuss whether the
20
state would stipulate to a request for an order shortening the time for hearing. In response, I
21
emailed Mr. Carroll that "I received [his] voicemail requesting that the state consider stipulating
22
to shortening the time for the hearing on the state's motion to dismiss." Attached as Exhibit A is
23
a true and correct copy of the email I sent to Mr. Canoll. I further stated that the Court sua
24
sponte changed the hearing date from March 27, 2012 to April17, 2012, and that we presumed
25
that the Court changed the hearing date because it found that date to be appropriate for the State
26
Defendants' motion. Exhibit A. For this reason, I declined to affirmatively stipulate to a
27
different hearing date, but I permitted Mr. Carroll to "represent to the Court that the state does not
28
oppose having the matter heard on an earlier date." Id. I did not discuss with Mr. Carroll the
5
Response and Pmtial Opposition to Motion to Change Time (5: 11-cv-05496-HRL)
PDF Page 8
Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page7 of 9
1
Plaintiffs request to shorten the date for the initial Case Management Conference, nor did I
2
discuss with Mr. Carroll any of the reasons articulated for the Plaintiffs current motion.
3
4
I declare that the foregoing is true and correct under penalty of perjury under the laws of the
United States of America.
5
6
Date: March 14, 2012
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27.
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Response and Partial Opposition to Motion to Change Time (5:11-cv-05496-HRL)
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Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page8 of 9
1.
EXHIBIT A
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Case5:11-cv-05496-HRL Document34 Filed03/14/12 Page9 of 9
From:
To:
Date:
Subject:
Ryan Marcroft
Michael, Law Office of
3/13/2012 3:36 PM
Think Computer Corporation
Mike, I received your voicemail requesting that the state consider stipulating to shortening the time for
the hearing on the state's motion to dismiss. The state noticed the motion for a hearing on March 27,
2012, and the Court sua sponte changed the hearing date to April 17, 2012. We presume that the Court
changed the hearing date to April 17, 2012 because it found that to be an appropriate hearing date for
this motion, and so we are not inclined to affirmatively stipulate to a different hearing date.
Nonetheless, you may represent to the Court that the state does not oppose having the matter heard on
an earlier date.
Sincerely,
Ryan Marcroft
Deputy Attorney General
Office of the Attorney General
(916) 323-5313
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