Rojas v. Bosch Solar Energy Corporation

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 STEVE R. ROJAS and ANDREA N. Case No. 18-cv-05841-BLF ROJAS, on behalf of themselves and all 8 others similarly situated, ORDER SUSTAINING DEFENDANT’S 9 Plaintiffs, OBJECTION TO REPLY EVIDENCE; DENYING AS MOOT DEFENDANT’S 10 v. ALTERNATIVE REQUEST TO FILE SUR-REPLY; AND DENYING 11 BOSCH SOLAR ENERGY PLAINTIFFS’ ADMINISTRATIVE CORPORATION, MOTION FOR PERMISSION TO FILE 12 RESPONSE TO DEFENDANT’S Defendant. OBJECTION 13 [Re: ECF 197, 198] 14 15 Defendant has filed an objection to certain evidence filed with Plaintiffs’ reply in support 16 of their motion for class certification. See Def.’s Obj., ECF 197. In the alternative, Defendant 17 requests leave to file a sur-reply. See id. Plaintiffs have filed an administrative motion for leave 18 to file a response to Defendant’s objection, which is opposed by Defendant. See Pls.’ Admin. 19 Mot., ECF 198; Def’s Resp., ECF 203. 20 Plaintiffs’ administrative motion for leave to file a response to Defendant’s objection is 21 DENIED. This district’s Civil Local Rules do not contemplate a response to an objection to reply 22 evidence, see Civ. L.R. 7-3(d)(1), and the Court does not find a response to be necessary here. 23 Defendant objects to three pieces of reply evidence: (1) the affidavit of Plaintiffs’ notice 24 expert, Todd B. Hilsee, ECF 196-12; (2) Paragraphs 2-10 and Exhibits A and D to the 25 supplemental declaration of David M. Birka-White, ECF 196-1, 196-2, 196-5; and (3) the 26 declaration of Michael V. Garcia, ECF 196-13. With respect to the first piece of evidence, Mr. 27 Hilsee has not previously been disclosed as an expert in this case. He now offers expert opinion 1 class action. Defendant argues that it would be unfair for the Court to consider Mr. Hilsee’s new 2 expert opinion submitted for the first time on reply, as Defendant has not had an opportunity to 3 depose Mr. Hilsee or to obtain a rebuttal expert. With respect to the other two pieces of evidence, 4 the identified portions of the supplemental declaration of David M. Birka-White, and the 5 declaration of Michael V. Garcia, Defendant argues that the evidence contains new factual matter 6 on damages and therefore should not be considered on reply. Moreover, Defendant points out that 7 the identified portions of the supplemental declaration of David M. Birka-White, and the 8 declaration of Michael V. Garcia, are not even mentioned in Plaintiffs’ reply brief. The Court 9 notes that Plaintiffs filed a “Corrected Reply” after Defendant filed its objection, adding references 10 to the supplemental declaration of David M. Birka-White, and the declaration of Michael V. 11 Garcia. 12 As the Ninth Circuit noted in Dutta v. State Farm, this district’s “practice rules recognize 13 the potential inequities that might flow from the injection of new matter at the last round of 14 briefing.” Dutta v. State Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1171-72 (9th Cir. 2018). The 15 district court has discretion to sustain the disadvantaged party’s objection to new reply evidence 16 or, in the alternative, to permit the disadvantaged party to file a sur-reply. See id. at 1172. 17 The Court finds that the consideration of Plaintiffs’ reply evidence would be unfair and 18 prejudicial to Defendant and therefore SUSTAINS Defendant’s objection in its entirety. The 19 Court has considered whether it might be more appropriate to accept the reply evidence and allow 20 Defendant to file a sur-reply. However, to give Defendant a fair opportunity to respond to Mr. 21 Hilsee’s expert opinion, the Court would have to continue the hearing on Plaintiffs’ motion for 22 class certification for a sufficient length of time that Defendant could depose Mr. Hilsee and 23 obtain a rebuttal expert. The Court declines to disrupt the case schedule in this manner, 24 particularly since the Court previously granted multiple prior requests by the parties to extend the 25 deadlines for briefing and hearing Plaintiffs’ motion for class certification, before finally denying 26 the most recent request for continuance in an order issued October 14, 2021. See Order, ECF 193. 27 Of additional concern is the likelihood that continuance of the class certification hearing would 1 trial date. The Court currently is setting trials in 2024. Given the age of this case, the Court does 2 || not find potential significant delays in the case schedule to be reasonable. Thus, granting 3 Defendant leave to file a sur-reply is not a feasible option. 4 ORDER 5 (1) Defendant’s objection to Plaintiffs’ reply evidence is SUSTAINED in its 6 entirety. 7 (2) Defendant’s alternative request for leave to file a sur-reply is DENIED AS MOOT. 8 (3) Plaintiffs’ administrative motion for leave to file a response to Defendant’s 9 objection is DENIED. 10 11 Dated: November 23, 2021 a (12 BETH LABSON FREEMAN 13 United States District Judge

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