Rojas v. Bosch Solar Energy Corporation

3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION STEVE R. ROJAS and ANDREA N. Case No. 18-cv-05841-BLF ROJAS, on behalf of themselves and all 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 [Re: ECF 197, 198] 15 Defendant has filed an objection to certain evidence filed with Plaintiffs’ reply in support of their motion for class certification. See Def.’s Obj., ECF 197. In the alternative, Defendant requests leave to file a sur-reply. See id. Plaintiffs have filed an administrative motion for leave 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 DENIED. This district’s Civil Local Rules do not contemplate a response to an objection to reply 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 expert, Todd B. Hilsee, ECF 196-12; (2) Paragraphs 2-10 and Exhibits A and D to the supplemental declaration of David M. Birka-White, ECF 196-1, 196-2, 196-5; and (3) the declaration of Michael V. Garcia, ECF 196-13. With respect to the first piece of evidence, Mr. Hilsee has not previously been disclosed as an expert in this case. He now offers expert opinion class action. Defendant argues that it would be unfair for the Court to consider Mr. Hilsee’s new expert opinion submitted for the first time on reply, as Defendant has not had an opportunity to depose Mr. Hilsee or to obtain a rebuttal expert. With respect to the other two pieces of evidence, the identified portions of the supplemental declaration of David M. Birka-White, and the declaration of Michael V. Garcia, Defendant argues that the evidence contains new factual matter on damages and therefore should not be considered on reply. Moreover, Defendant points out that the identified portions of the supplemental declaration of David M. Birka-White, and the declaration of Michael V. Garcia, are not even mentioned in Plaintiffs’ reply brief. The Court notes that Plaintiffs filed a “Corrected Reply” after Defendant filed its objection, adding references to the supplemental declaration of David M. Birka-White, and the declaration of Michael V. Garcia.

12 As the Ninth Circuit noted in Dutta v. State Farm, this district’s “practice rules recognize the potential inequities that might flow from the injection of new matter at the last round of briefing.” Dutta v. State Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1171-72 (9th Cir. 2018). The district court has discretion to sustain the disadvantaged party’s objection to new reply evidence 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 prejudicial to Defendant and therefore SUSTAINS Defendant’s objection in its entirety. The Court has considered whether it might be more appropriate to accept the reply evidence and allow Defendant to file a sur-reply. However, to give Defendant a fair opportunity to respond to Mr. Hilsee’s expert opinion, the Court would have to continue the hearing on Plaintiffs’ motion for class certification for a sufficient length of time that Defendant could depose Mr. Hilsee and obtain a rebuttal expert. The Court declines to disrupt the case schedule in this manner, particularly since the Court previously granted multiple prior requests by the parties to extend the deadlines for briefing and hearing Plaintiffs’ motion for class certification, before finally denying 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 trial date. The Court currently is setting trials in 2024. Given the age of this case, the Court does || not find potential significant delays in the case schedule to be reasonable. Thus, granting 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.

11 Dated: November 23, 2021 a (12 BETH LABSON FREEMAN 13 United States District Judge

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