EXHIBIT D

Case: 19-30088 Doc# 3105-4 Filed: 07/19/19 Entered: 07/19/19 15:37:40 Page 1

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· · · · · · · · ·SUPERIOR COURT OF CALIFORNIA

· · · · · · · · · ·COUNTY OF SAN FRANCISCO

· · · · HONORABLE CURTIS E.A. KARNOW, JUDGE PRESIDING

· · · · · · · · · · DEPARTMENT NUMBER 304

· · · · · · · · · · · · · ---oOo---

· 

· · ·COORDINATION PROCEEDING

· · ·SPECIAL TITLE [RULE 1550(b)]

· · · · · · · · · · · · · · · · · · · ·Case No.: CJC-17-004955

· · ·CALIFORNIA NORTH BAY FIRE CASES

· · ·_______________________________/

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· 

· 

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· · · · · · ·Reporter's Transcript of Proceedings

· · · · · · · · · Friday, December 28, 2018

· 

· 

· 

· · ·REPORTED BY:

· · ·MARY ANN SCANLAN, CSR NO. 8875 RMR-CRR-CCRR-CLR

· 

· 

· 

· 

·

CERTIFIED 

TRANSCRIPT 

Certified Shorthand Reporters 

408 Columbus Avenue, Suite 2, San Francisco CA 94 133 

o I 4 1 5.834. 11 14 f / 415.399.9266 

e I info@scan lanstone.com w / scanlanstone.com 

Case: 19-30088 Doc# 3105-4 Filed: 07/19/19 Entered: 07/19/19 15:37:40 Page 2

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·1· · · · · · · · · · · · I N D E X

·2· · · · · · · · · · · · · · · · · · · · · · · · ·PAGE

·3· ·Preference Motion· · · · · · · · · · · · · · · 13

·4· ·Case Management Conference· · · · · · · · · · ·22

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~CANLAN 

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·1· · · ·A P P E A R A N C E S· O F· C O U N S E L:

·2· ·FOR PLAINTIFFS:

·3· · · · ADLER LAW GROUP, APLC

· · · · · 402 W. Broadway, Suite 860

·4· · · · San Diego, California 92101

· · · · · 619.531.8700

·5· · · · BY:· AMANDA WIESNER, Attorney at Law (CourtCall)

·6· · · · MARY ALEXANDER & ASSOCIATES, P.C.

· · · · · 44 Montgomery Street, Suite 1303

·7· · · · San Francisco, California 94104

· · · · · 415.433.4440

·8· · · · BY:· MARY ALEXANDER, Attorney at Law

· · · · · · · ·malexander@@maryalexanderlaw.com

·9

· · · · · ANDREWS THORNTON

10· · · · 2 Corporate Park, Suite 110

· · · · · Irvine, California 92606

11· · · · 949.748.1000

· · · · · BY:· SEAN T. HIGGINS, Attorney at Law (CourtCall)

12· · · · · · ·shiggins@andrewsthornton.com

13· · · · BAUMAN LOEWE WITT & MAXWELL

· · · · · 8765 E. Bell Road, Suite 204

14· · · · Scottsdale, AZ· 85260

· · · · · 480.502.4664

15· · · · BY:· MARK C. BAUMAN, Attorney at Law (CourtCall)

· · · · · · · ·mbauman@blwmlawfirm.com

16

· · · · · BERGER KAHN

17· · · · 2 Park Plaza, Suite 650

· · · · · Irvine, California 92614-8516

18· · · · 949.474.1800

· · · · · BY:· CRAIG S. SIMON, Attorney at Law

19· · · · · · ·csimon@bergerkahn.com

20· · · · BARON & BUDD, P.C.

· · · · · 603 N. Coast Highway Suite G

21· · · · Solana Beach, California 92075

· · · · · 415.310.7523

22· · · · BY:· BRITT STROTTMAN, Attorney at Law

· · · · · · · ·(CourtCall)

23· · · · · · ·bstrottman@baronbudd.com Attorney at Law

24

25· · · · ·(APPEARANCES CONTINUED FOLLOWING PAGE:)

~CANLAN 

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·1· · · · A P P E A R A N C E S· O F· C O U N S E L:

·2· · · · · · · · · · · ·(CONTINUED)

·3· ·FOR PLAINTIFFS:

·4· · · · BARON & BUDD, P.C.

· · · · · 3102 Oak Lawn Avenue, Suite 1100

·5· · · · Dallas, Texas 75219

· · · · · 214.521.3605

·6· · · · BY:· JOHN FISKE, Attorney at Law (CourtCall)

· · · · · · · ·jfiske@baronbudd.com

·7

· · · · · THE BRANDI LAW FIRM

·8· · · · 354 Pine Street, Third Floor

· · · · · San Francisco, California 94104

·9· · · · 415.989.1800

· · · · · BY:· THOMAS J. BRANDI, Attorney at Law (CourtCall)

10· · · · · · ·tjb@brandilaw.com

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· · · · · THE LAW OFFICES OF SHAWN E. CAINE

12· · · · 1221 Camino Del Mar

· · · · · Del Mar, California 92014

13· · · · 858.350.1660

· · · · · BY:· SHAWN E. CAINE, Attorney at Law (CourtCall)

14· · · · · · ·scaine@cainelaw.com

15· · · · CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD LLP

· · · · · 110 Laurel Street

16· · · · San Diego, California 92101-1486

· · · · · 619.238.1811

17· · · · BY:· ANGELA JAE CHUN, Attorney at Law (CourtCall)

· · · · · · · ·ajc@cglaw.com

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· · · · · COTCHETT, PITRE, SIMON & McCARTHY

19· · · · San Francisco Airport Office Center

· · · · · 840 Malcolm Road, Suite 200

20· · · · Burlingame, California 94010

· · · · · BY:· FRANK M. PITRE, Attorney at Law

21· · · · · · ·fpitre@cpmlegal.com

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25· · · · ·(APPEARANCES CONTINUED FOLLOWING PAGE:)

~CANLAN 

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·1· · · · A P P E A R A N C E S· O F· C O U N S E L:

·2· · · · · · · · · · · ·(CONTINUED)

·3· ·FOR PLAINTIFFS:

·4· · · · COZEN O'CONNER

· · · · · 501 West Broadway, Suite 1610

·5· · · · San Diego, CA· 92101

· · · · · 619.685.1716

·6· · · · BY:· KEVIN D. BUSH, Attorney at Law (CourtCall)

· · · · · · · ·kbush@cozen.com

·7

· · · · · CUTTER LAW PC

·8· · · · 401 Watt Avenue, Suite 100

· · · · · Sacramento, California 95864

·9· · · · 916.290.4900

· · · · · BY:· MATTHEW M. BREINING, Attorney at Law

10· · · · · · ·(CourtCall)

· · · · · · · ·mbreining@cutterlaw.com

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· · · · · DENENBERG TUFFLEY, PLLC

12· · · · 1900 Avenue Of The Stars, Suite 425

· · · · · Los Angeles, California 90067-4318

13· · · · 310.356.4683

· · · · · BY:· ZACHARY P. MARKS, Attorney at Law (CourtCall)

14· · · · · · ·zmarks@dt-law.com

15· · · · DIXON DIAB & CHAMBERS

· · · · · 501 W. Boradway, Suite 800

16· · · · San Diego, California 92101

· · · · · 619.354.2662

17· · · · BY:· ED DIAB, Attorney at Law (CourtCall)

· · · · · · · ·diab@theddcfirm.com

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· · · · · DREYER, BABICH, BUCCOLA, WOOD CAMPORA LLP

19· · · · 20 Bicentennial Circle

· · · · · Sacramento, California 95826

20· · · · 916.379.3500

· · · · · BY:· STEVEN M. CAMPORA, Attorney at Law

21· · · · · · ·scampora@dbbwc.com

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25· · · · ·(APPEARANCES CONTINUED FOLLOWING PAGE:)

~CANLAN 

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·1· · · · A P P E A R A N C E S· O F· C O U N S E L:

·2· · · · · · · · · · · ·(CONTINUED)

·3· ·FOR PLAINTIFFS:

·4· · · · DONALD S. EDGAR, ATTORNEY AT LAW

· · · · · 408 College Avenue

·5· · · · Santa Rosa, California 95401

· · · · · 707.799.4090

·6· · · · BY:· DONALD S. EDGAR, Attorney at Law

· · · · · · · ·don@classattorneys.com

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· · · · · ENGSTROM LIPSCOMB & LACK

·8· · · · 10100 Santa Monica Boulevard, 16th Floor

· · · · · Los Angeles, California 90067-4107

·9· · · · 310.552.3800

· · · · · BY:· GREGROY P. WATERS, Attorney at Law (CourtCall)

10· · · · · · ·gwaters@elllaw.com

· · · · · BY:· ALEXANDRA J. NEWSOM, Attorney at Law

11· · · · · · ·(CourtCall)

· · · · · · · ·anewsom@elllaw.com

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· · · · · FOX LAW APC

13· · · · The Plaza Building

· · · · · 225 W. Plaza Street, Suite 102

14· · · · Solana Beach, California 92075

· · · · · BY:· JOANNA FOX, Attorney at Law (CourtCall)

15· · · · · · ·Joanna@FoxLawAPC.com

16· · · · FRANTZ LAW GROUP

· · · · · 402 W Broadway, Suite 860

17· · · · San Diego, CA 92101

· · · · · 619.233.5945

18· · · · BY:· JAMES P. FRANTZ, Attorney at Law

· · · · · · · ·jpf@frantzlawgroup.com

19· · · · BY:· REGINA BAGDASARIAN, Attorney at Law

· · · · · · · ·(CourtCall)

20· · · · · · ·rbagdasarian@frantzlawgroup.com

21· · · · GILBERT LLP

· · · · · 1100 New York Avenue, NW· Suite 700

22· · · · Washington, DC, 20005

· · · · · 202.772.2428

23· · · · BY:· DANIEL I. WOLF, Attoreny at Law

· · · · · · · ·(CourtCall)

24· · · · · · ·wolfd@gotofirm.com

25· · · · ·(APPEARANCES CONTINUED FOLLOWING PAGE:)

~CANLAN 

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·1· · · · A P P E A R A N C E S· O F· C O U N S E L:

·2· · · · · · · · · · · ·(CONTINUED)

·3· ·FOR PLAINTIFFS:

·4· · · · GOYETTE & ASSOCIATES

· · · · · 2366 Gold Meadow Way, Suite 200

·5· · · · Gold River, California 95670-4471

· · · · · 916.851.1995

·6· · · · BY:· RACHEL SIMONS, Law Clerk Law (CourtCall)

·7· · · · GROTEFELD HOFFMANN LLP

· · · · · 700 Larkspur Landing Circle, Suite 280

·8· · · · Larkspur, California 94939-1755

· · · · · 415.344.9670

·9· · · · BY:· MAURA WALSH OCHOA, Attorney at Law (CourtCall)

· · · · · · · ·mochoa@ghlaw-llp.com

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· · · · · JACKSON & PARKINSON

11· · · · 205 West Alvarado Street, Suite 2

· · · · · Fallbrook, California 92028

12· · · · 760.723.1295

· · · · · BY:· ROBERT JACKSON, Attorney at Law (CourtCall)

13· · · · · · ·robert@jacksontriallawyers.com

14· · · · LAW OFFICES OF JANG & ASSOCIATES, LLP

· · · · · 1766 Lacassie Avenue, Suite 200

15· · · · Walnut Creek, California 94596

· · · · · 925.937.1400

16· · · · BY:· SALLY NOMA, Attorney at Law (CourtCall)

· · · · · · · ·snoma@janglit.com

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· · · · · KERSHAW COOK & TALLEY

18· · · · 401 Watt Avenue

· · · · · Sacramento, CA 95864

19· · · · 916.448.9800

· · · · · BY:· IAN J. BARLOW, Attorney at Law (CourtCall)

20· · · · · · ·ian@kctlegal.com

21· · · · LAW OFFICES OF JOHN C. LEMON

· · · · · 1350 Columbia Street, Suite 600

22· · · · San Diego, California 92101

· · · · · 619.794.0423

23· · · · BY:· JOHN C. LEMON, Attorney at Law

· · · · · · · ·john@jcl-lawoffice.com

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25· · · · ·(APPEARANCES CONTINUED FOLLOWING PAGE:)

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·1· · · · A P P E A R A N C E S· O F· C O U N S E L:

·2· · · · · · · · · · · ·(CONTINUED)

·3· ·FOR PLAINTIFFS:

·4· · · · LEVINS SIMES

· · · · · 44 Montgomery Street, 32nd Floor

·5· · · · San Francisco, California 94104

· · · · · 415.426.3000

·6· · · · BY:· AMY ESKIN, Attorney at Law

· · · · · · · ·aeskin@levinsimes.com

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· · · · · LIEFF CABRASER & HEIMANN

·8· · · · 275 Battery Street, Suite 3000

· · · · · San Francisco, California 94111

·9· · · · 415.956.1000

· · · · · BY:· ELIZABETH CABRASER, Attorney at Law

10· · · · · · ·ecabraser@lchb.com

· · · · · BY:· LEXI J. HAZAM, Attorney at Law (CourtCall)

11· · · · · · ·lhazam@lchb.com

· · · · · BY:· ABBY R. WOLF, Attorney at Law

12· · · · · · ·awolf@lchb.com

13· · · · MCNICHOLAS & MCNICHOLAS, LLP

· · · · · 10866 Wilshire Boulevard, Suite 1400

14· · · · Los Angeles, California 90024

· · · · · 310.474.1582

15· · · · BY:· JOHN PATRICK MCNICHOLAS IV, Attorney at Law

16· · · · ROBINS CLOUD

· · · · · 808 Wilshire Boulevard, Suite 450

17· · · · Santa Monica, California 90401

· · · · · 310.929.4200

18· · · · BY:· KEVIN M. POLOLACK, Attorney at Law (CourtCall)

· · · · · · · ·kpollack@robinscloud.com

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· · · · · ROBINS KAPLAN LLP

20· · · · 800 LaSalle Avenue Suite 2800

· · · · · Minneapolis, MN· 55402

21· · · · 612.349.8500

· · · · · BY:· SCOTT G. JOHNSON, Attorney at Law (CourtCall)

22· · · · · · ·SJohnson@RobinsKaplan.com

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25· · · · ·(APPEARANCES CONTINUED FOLLOWING PAGE:)

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·1· · · · A P P E A R A N C E S· O F· C O U N S E L:

·2· · · · · · · · · · · ·(CONTINUED)

·3· ·FOR PLAINTIFFS:

·4· · · · ROBINSON CALCAGNIE, INC.

· · · · · 19 Corporate Plaza Drive

·5· · · · Newport Beach, California 92660

· · · · · 949.720.1288

·6· · · · BY:· MARK P. ROBINSON, JR., Attorney at Law

· · · · · · · ·mrobinson@robinsonfirm.com

·7· · · · BY:· LILA RAZMARA, Attorney at Law (CourtCall)

· · · · · · · ·lrazmara@robinsonfirm.com

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· · · · · LAW OFFICES OF ALEXANDER M. SCHACK, A.P.C.

·9· · · · 16870 West Bernardo Drive, #400

· · · · · San Diego, California 92127

10· · · · 858.485.6535

· · · · · BY:· NATASHA N. SERINO, Attorney at Law (CourtCall)

11· · · · · · ·natasha@serinoandserino.com

12· · · · SCHROEDER LOSCOTOFF LLP

· · · · · 7410 Greenhaven Drive, Suite 200

13· · · · Sacramento, California 95831

· · · · · 916.438.8300

14· · · · BY:· ERIC M. SCHROEDER, Attorney at Law (CourtCall)

· · · · · · · ·emschroeder@calsubro.com

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· · · · · SIEGLOCK LAW

16· · · · 1221 Camino Del Mar

· · · · · Del Mar, California 92014

17· · · · 858.793.0380

· · · · · BY:· CHRISTOPHER SIEGLOCK, Attorney at Law (CourtCall)

18· · · · · · ·chris@sieglocklaw.com

19· · · · SINGLETON LAW FIRM

· · · · · 450 A Street, 5th Floor

20· · · · San Diego, California 92101

· · · · · 619.771.3473

21· · · · BY:· GERALD SINGLETON, Attorney at Law

· · · · · · · ·gerald@slffirm.com

22· · · · BY:· GARY LOCURTO, Attorney at Law

· · · · · · · ·gary@slffirm.com

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·1· · · · A P P E A R A N C E S· O F· C O U N S E L:

·2· · · · · · · · · · · ·(CONTINUED)

·3· ·FOR PLAINTIFFS:

·4· · · · TERRY SINGLETON, APC

· · · · · 1950 5th Avenue, Suite 200

·5· · · · san Diego, California 92101-2344

· · · · · 619.239.3225

·6· · · · BY:· TERRY SINGLETON, Attorney at Law

·7· · · · SKIKOS CRAWFORD SKIKOS JOSEPH & MILLICAN

· · · · · 625 Market Street, 11th Floor

·8· · · · San Francisco, California 94105

· · · · · 415.546.7300

·9· · · · BY:· STEVEN J. SKIKOS, Attorney at Law

· · · · · · · ·sskikos@skikos.com

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· · · · · LAW OFFICES OF ROBERT A. STUTMAN

11· · · · 1206 Corona Pointe Court, Suite 306

· · · · · Corona, California 92879

12· · · · 951.387.4700

· · · · · BY:· TIMOTHY E. CARY, Attorney at Law (CourtCall)

13· · · · · · ·CaryT@StutmanLaw.com

14· · · · SUSQUEHANNA INTERNATIONAL GROUP, LLP

· · · · · 140 Broadway, 47th Floor

15· · · · New York, NY 10005

· · · · · 212.514.4705

16· · · · BY:· DAVID S. GREENBERG, Interested Party

· · · · · · · ·(CourtCall)

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· · · · · THOMPSON LAW OFFICES, P.C.

18· · · · 700 Airport Boulevard, Suite 160

· · · · · Burlingame, California 84010-1931

19· · · · 650.513.6111

· · · · · BY:· ROBERT W. THOMPSON, Attorney at Law

20· · · · · · ·(CourtCall)

· · · · · · · ·bobby@tlopc.com

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·1· · · · A P P E A R A N C E S· O F· C O U N S E L:

·2· · · · · · · · · · · ·(CONTINUED)

·3· ·FOR PLAINTIFFS:

·4· · · · THORSNES BARTOLOTTA MCGUIRE

· · · · · 2550 Fifth Avenue, Eleventh Floor

·5· · · · San Diego, California 92103

· · · · · 619.236.9363

·6· · · · BY:· JOHN F. McGUIRE, Attorney at Law

· · · · · · · ·mcguire@tbmlawyers.com

·7· · · · BY:· JACOB DOMENIC MARTINI, Attorney at Law

· · · · · · · ·(CourtCall)

·8· · · · · · ·martini@tbulawyers.com

·9· · · · WALKUP, MELODIA, KELLY & SCHOENBERGER

· · · · · 650 California Street, 26th Floor

10· · · · San Francisco, California 94108

· · · · · 415.981.7210

11· · · · BY:· KHALDOUN BAGHDADI, Attorney at Law

· · · · · · · ·kbaghdadi@WalkupLawOffice.com

12· · · · BY:· MAX SCHUVER, Attorney at Law

· · · · · · · ·mschuver@walkuplawoffice.com

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14· ·FOR DEFENDANT PG&E:

15· · · · CLARENCE DYER & COHEN LLP

· · · · · 899 Ellis Street

16· · · · San Francisco, California 94109

· · · · · 415.749.1800

17· · · · BY:· KATE DYER, Attorney at Law

· · · · · · · ·kdyer@clarencedyer.com

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· · · · · CRAVATH, SWAINE & MOORE

19· · · · Worldwide Plaza

· · · · · 825 Eighth Avenue

20· · · · New York, New York 10019

· · · · · BY:· DAMARIS HERNANDEZ, Attorney at Law

21· · · · · · ·dhernandez@cravath.com

· · · · · BY:· CHRISTINA N. BARREIRO, Attorney at Law

22· · · · · · ·cbarreiro@cravath.com

· · · · · BY:· KEVIN J. ORSINI, Attorney at Law (CourtCall)

23· · · · · · ·korsini@cravathcom

24

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·1· · · · A P P E A R A N C E S· O F· C O U N S E L:

·2· · · · · · · · · · · ·(CONTINUED)

·3· ·FOR DEFENDANT PG&E:

·4· · · · WILSON, SONSINI, GOODRICH & ROSATI

· · · · · 650 Page Mill Road

·5· · · · Palo Alto, CA· 94304-1050

· · · · · 650.320.4893

·6· · · · BY:· RODNEY GRANT STRICKLAND JR, Attorney at Law

· · · · · · · ·rstrickland@wsgr.com

·7

·8· · · · · · · · · · · · ---oOo---

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·1· · · · · · · · · P R O C E E D I N G S

·2· · · · · Friday | December 28, 2018 | 2:07 p.m.

·3· · · · · · · · · · · · ---oOo---

·4· · · · · · ·THE COURT:· Good afternoon.

·5· · · · · · ·So for two o'clock we have a preference

·6· ·motion.· I didn't see any oppositions.

·7· · · · · · ·MR. PITRE:· Good afternoon, Your Honor, Frank

·8· ·Pitre.

·9· · · · · · ·If we could, Your Honor, if it is not too much

10· ·trouble for the Court, we would request that we have the

11· ·CMC.

12· · · · · · ·THE COURT:· The trouble is that the CMC was

13· ·set for three o'clock and I don't know if everybody

14· ·realizes it would happen earlier than that.· If I had it

15· ·down and completed it in 45 minutes, people stroll in

16· ·the door or get on the telephone at three o'clock only

17· ·to be told it already happened, there's a due process

18· ·problem.

19· · · · · · ·MR. PITRE:· Understood, Your Honor.

20· · · · · · ·THE COURT:· I have read all the CMC materials,

21· ·so I'm sensitive to some of those issues.

22· · · · · · ·MR. PITRE:· Your Honor, the only issue that we

23· ·would raise is really one that deals with the motion

24· ·before His Honor as it relates to CMO number six.

25· · · · · · ·They're interrelated, so if the Court wants to

~CANLAN 

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·1· ·hear both at the same time, I just didn't want this

·2· ·Court to get the impression that because we did not file

·3· ·a formal opposition to the preference motion, that we

·4· ·did have some concerns as to how it would work.

·5· · · · · · ·THE COURT:· I understand and I know what they

·6· ·are.· I don't even have to read between the lines.

·7· · · · · · ·MR. PITRE:· There you go, Your Honor.

·8· · · · · · ·THE COURT:· I can just read the lines

·9· ·themselves.

10· · · · · · ·No, the order will issue -- both the CMO and

11· ·the order on the preference motion will issue after

12· ·we've finished all of the hearings and they'll have to

13· ·go out today because today is my last day for a couple

14· ·of weeks.

15· · · · · · ·MR. PITRE:· As long as Your Honor -- if I may.

16· ·I apologize.

17· · · · · · ·THE COURT:· Go ahead.

18· · · · · · ·MR. PITRE:· As long as we can have the Court

19· ·reserve its ruling on the order on the motion for

20· ·preference until they're both taken together, we'll take

21· ·it however the Court wants.

22· · · · · · ·THE COURT:· The order is not going to issue

23· ·until after I've had the case management conference.

24· · · · · · ·MR. PITRE:· Very good.

25· · · · · · ·THE COURT:· If that's helpful.

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·1· · · · · · ·Is Mr. Singleton here?

·2· · · · · · ·MR. SINGLETON:· Yes, Your Honor.

·3· · · · · · ·THE COURT:· How are you?

·4· · · · · · ·MR. SINGLETON:· I'm well, Your Honor.· How

·5· ·about yourself?

·6· · · · · · ·THE COURT:· I'm good.

·7· · · · · · ·There's no opposition to the motion, so my

·8· ·tentative, obviously, is to grant it, but there are a

·9· ·couple of issues that are not addressed in the motion

10· ·that we have to talk about -- I'll hear from PG&E in a

11· ·minute -- for example, a trial date, what county it

12· ·should occur in.

13· · · · · · ·Do you have any thoughts about any of these

14· ·things?

15· · · · · · ·MR. SINGLETON:· Yes, sir.

16· · · · · · ·I think 120 days would be April 29th, we

17· ·believe that would be an appropriate date for the Court

18· ·to set.

19· · · · · · ·In terms of the county, I understand

20· ·Your Honor is not available.· Obviously, our first

21· ·choice would be to be in front of Your Honor.

22· · · · · · ·THE COURT:· I'm not available at all in any

23· ·case after the middle of January because a different

24· ·judge will be taking all of these cases.

25· · · · · · ·MR. SINGLETON:· Understood, Your Honor.

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·1· · · · · · ·What I think we would request is to have the

·2· ·case transferred to Sacramento for trial.· That would be

·3· ·much more convenient for our client.· I know the Court

·4· ·has seen the papers.· She is in very poor health.

·5· · · · · · ·Sacramento was the coordination point for the

·6· ·Butte fire.· Obviously, it is certainly capable of

·7· ·handling a complex case, and so we believe that it is

·8· ·within the Court's powers to send it to Sacramento and

·9· ·we think that would be the best for all parties.

10· · · · · · ·It certainly would be most convenient for the

11· ·witnesses.· As I'm sure the Court is aware, the

12· ·witnesses who will be testifying from Cal Fire and some

13· ·of the other agencies are in counties that are adjacent

14· ·to Sacramento.· We obviously haven't had a chance to

15· ·speak with every witness, but some of the ones we have

16· ·spoken with would prefer a trial in Sacramento.

17· · · · · · ·So for the benefit of the parties and the

18· ·witnesses, we think Sacramento is where this particular

19· ·trial should occur.

20· · · · · · ·THE COURT:· Thank you.

21· · · · · · ·Does PG&E have any views on this?

22· · · · · · ·MS. HERNANDEZ:· Good afternoon, Your Honor,

23· ·Damaris Hernandez.

24· · · · · · ·We agree that Mr. Singleton that April 29th

25· ·should be the date for trial.

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·1· · · · · · ·I think we think the case should happen here

·2· ·in San Francisco.· Again, we agree with Mr. Singleton

·3· ·that we prefer it would be in front of you, but since

·4· ·that is not possible, we think it's more efficient for

·5· ·us to have it here.· It's more convenient for us.

·6· · · · · · ·And just as we discussed in the last CMC, it

·7· ·makes sense, since the cases are coordinated here, that

·8· ·it happen here in San Francisco.

·9· · · · · · ·THE COURT:· If you could get back to the

10· ·podium, please.

11· · · · · · ·Your convenience is not perhaps the most

12· ·important factor.· The convenience of the plaintiff

13· ·herself is important in the sense that she might or may

14· ·not have trouble moving.· I don't know what that status

15· ·is, but my main concern I think is probably convenience

16· ·of witnesses and things like that.

17· · · · · · ·Do you have any view as to where the witnesses

18· ·are likely to come from?

19· · · · · · ·I mean, we have PG&E folks of course.· Maybe I

20· ·should assume that they're here in San Francisco. I

21· ·don't know.· Do you have a view as to what the

22· ·unaffiliated witnesses, where they might be coming from,

23· ·third party witnesses, for example?

24· · · · · · ·MS. HERNANDEZ:· I think the third party

25· ·witnesses will probably be from San Francisco.

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·1· · · · · · ·THE COURT:· Who would those be, probably?

·2· · · · · · ·MS. HERNANDEZ:· So the vegetation management,

·3· ·Lobo, it's like Atlas.· It's an alleged vegetation

·4· ·contact power line case, so it would be third party

·5· ·contractors who did patrolling, and it would also be the

·6· ·PG&E folks who actually are involved in monitoring the

·7· ·vegetation work we do.

·8· · · · · · ·THE COURT:· Those are all residents closer to

·9· ·San Francisco than they are to Sacramento?

10· · · · · · ·MS. HERNANDEZ:· I think so, Your Honor.

11· · · · · · ·THE COURT:· We don't really know, do we?· No

12· ·one knows.· It was never briefed.

13· · · · · · ·MS. HERNANDEZ:· It was never briefed.

14· · · · · · ·THE COURT:· Right, no one has a clue.

15· · · · · · ·Fortunately, San Francisco and Sacramento are

16· ·not too far apart from each other, but we actually have

17· ·no basis to decide -- there's nothing in front of me

18· ·that decides or even helps decide whether it should be

19· ·San Francisco or Sacramento, except PG&E is across the

20· ·street, basically, right?

21· · · · · · ·If I could speak with Mr. Singleton just for a

22· ·moment.

23· · · · · · ·Thank you, ma'am.· I appreciate your help.

24· · · · · · ·There's nothing in here that helps me decide

25· ·this.· Where does your client live, what county is she?

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·1· · · · · · ·MR. SINGLETON:· She lives in Nevada County,

·2· ·which is very close to Sacramento.· The witnesses that

·3· ·we intend to call will be local there.· Obviously, I'm

·4· ·sure PG&E --

·5· · · · · · ·THE COURT:· For example, what sort of

·6· ·witnesses would those be?

·7· · · · · · ·MR. SINGLETON:· There will be damages

·8· ·witnesses who will be in a position to comment on what

·9· ·the property looked like before, what the property

10· ·looked like after.· Those will all be local.

11· · · · · · ·My understanding of where the vegetation

12· ·management contractors are is that they are local, the

13· ·individuals who actually perform the work.· Typically,

14· ·that's the way it's done.

15· · · · · · ·In handling these cases, I've never seen it

16· ·done somewhere else where, for example, you have

17· ·contractors from San Francisco who would drive several

18· ·hours to perform work in Nevada County.· Typically,

19· ·they're local people that are hired to do it.· I believe

20· ·that's what we'll find here, but obviously if that's

21· ·something the Court wishes to reserve judgment upon and

22· ·have us brief the issue and try to find out, we can

23· ·certainly do that.

24· · · · · · ·THE COURT:· I think probably everybody would

25· ·like this just decided one way or another as soon as

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·1· ·possible.· You would; probably PG&E would.· I appreciate

·2· ·that.· Thank you, sir.

·3· · · · · · ·Yes, ma'am.

·4· · · · · · ·MS. HERNANDEZ:· Your Honor, to the extent that

·5· ·Your Honor wishes it to be in Sacramento, I think we

·6· ·would be amendable to that.· We can get our witnesses

·7· ·there and we can do it for the convenience of the

·8· ·plaintiff.

·9· · · · · · ·THE COURT:· Okay.

10· · · · · · ·I'll devise an order.· It will be brief and

11· ·we'll have it in Sacramento.

12· · · · · · ·The actual date, I may set it down for

13· ·April 29th, but I think I need to contact the presiding

14· ·judge in Sacramento to find out what their system is for

15· ·assigning dates on cases and so on.· I want something

16· ·that fits with what they're doing.

17· · · · · · ·There are other issues with respect to how

18· ·discovery is going to get handled between now and then,

19· ·but my guess is we'll have a more detailed discussion

20· ·about that at the CMC; I think probably.

21· · · · · · ·I think would -- I recognize -- at least I'll

22· ·just speak for myself -- which is that preference

23· ·motions like this present an impossible situation for

24· ·everybody.· It's impossible for the plaintiff.· It's

25· ·impossible for the defendants.· The idea that we can

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·1· ·have as prepared a trial in 120 days as we could with a

·2· ·more extensive time period is really not feasible.

·3· · · · · · ·What the legislature has told us,

·4· ·understandably, is that it's better to have an imperfect

·5· ·process and do what we can within 120 days rather than

·6· ·run a serious risk of a plaintiff not having his or her

·7· ·day in court at all.· That's the judgment call the

·8· ·legislature has made.

·9· · · · · · ·But the consequence is going to be that a

10· ·number of things that we would normally want to get done

11· ·in preparation for a trial, we're not going to have the

12· ·time to do it.· It's never going to happen.· We can talk

13· ·about that in a little bit more detail at the CMC, about

14· ·how we're going to organize preference motions and

15· ·particularly the discovery that has to be done in

16· ·advance of that.

17· · · · · · ·With that being said, I think we'll resume in

18· ·about 45 minutes.· We will have our three o'clock CMC at

19· ·that point.· That way I'll know that everybody who wants

20· ·to participate is available to either listen or come in

21· ·the door.

22· · · · · · ·I'd like to get it done sooner, too, because I

23· ·know it's Friday afternoon and people want to get back

24· ·to their families, but I think it's just not fair to

25· ·people who are counting on this starting at

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·1· ·three o'clock to start without them.

·2· · · · · · · · (Recess taken 2:18 p.m.)

·3

·4· · · · · CASE MANAGEMENT CONFERENCE | 3:00 P.M.

·5· · · · · · ·THE COURT:· Good afternoon again.

·6· · · · · · ·I believe we have exactly the same people,

·7· ·don't we?· Oh, well.

·8· · · · · · ·Let me just give you a couple of tentative

·9· ·thoughts on some issues that are presented by the

10· ·various papers, and then I'll turn it over to the

11· ·attorneys for discussion.

12· · · · · · ·With respect to the Sulphur fire, we've

13· ·already discussed this and there's no reason to shift

14· ·gears at this point.· We're going to proceed with the

15· ·Atlas fire first.

16· · · · · · ·With respect to the suggestions made by the

17· ·Singleton firm, which are referred and summarized to

18· ·some extent in exhibit C of the CMC statement, I reject

19· ·the suggestions.· I think it's confusing and

20· ·counterproductive to go down that road.

21· · · · · · ·I would remind the Singleton firm that we have

22· ·an orderly process here in terms of getting CMC

23· ·statements in to the Court and people are simply going

24· ·to have to do a better job in terms of coordination in

25· ·advance.· So if the Singleton firm or indeed any

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·1· ·attorney representing a plaintiff has concerns or issues

·2· ·or wants things discussed in a CMC statement, it may

·3· ·just be necessary to back up and start a little bit

·4· ·earlier than ordinarily what's going on.

·5· · · · · · ·These things are due three days in advance,

·6· ·and that means that sometimes you may have to start ten

·7· ·days in advance or something like that to get the ball

·8· ·rolling and have the discussion that you need so that

·9· ·your views can be represented and contested if necessary

10· ·by other attorneys.

11· · · · · · ·There's nothing wrong with having sort of a

12· ·contest or different viewpoints in the CMC statement.

13· ·That's fine.· In fact, it can be very healthy, but to

14· ·have separate documents lodged is not good, and to have,

15· ·for example, a document sent in on December 27th is not

16· ·good at all.· It is just confusing and it needs people

17· ·looking at -- people seeing documents and ideas and

18· ·positions during a time period where it's impossible to

19· ·respond to them in writing and that gets difficult.

20· · · · · · ·If it were just the case with a couple of

21· ·lawyers, we would have plenty of time in the case

22· ·management context to go through everything orally and

23· ·to have people discuss things orally and to give

24· ·everybody all the time they want to speak orally.

25· · · · · · ·But in this case like this and other cases

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·1· ·involving many lawyers, most of the work actually has to

·2· ·be done in writing because there's no way to say

·3· ·everything that you have to say and be able to respond

·4· ·to it orally in the case management context.

·5· · · · · · ·I'll stop there and open it up for any

·6· ·comments and then we'll talk more specifically about

·7· ·CMO5 and CMO6, so if you have comments about those

·8· ·things in particular, just hold off for a few minutes

·9· ·while I pause just to get any reactions or comments from

10· ·anybody who'd like to talk about the topics that I've

11· ·just alluded to.

12· · · · · · ·Yes, sir.

13· · · · · · ·MR. SINGLETON:· Your Honor, just as -- so I

14· ·understand what is being rejected.

15· · · · · · ·One of the things that we asked for was the

16· ·right to do discovery on behalf of Ms. Fowler.· Is that

17· ·something that's being rejected or is that something

18· ·we're going to discuss going forward?

19· · · · · · ·THE COURT:· Well, that specifically is

20· ·something which is going to have to be coordinated.

21· · · · · · ·Obviously, you need to do discovery specific

22· ·to her case.· There's no question about it, but I don't

23· ·want to have PG&E getting all sorts of discovery demands

24· ·from you without the other lawyers in the case having --

25· ·especially lead counsel in the case having an

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·1· ·opportunity to look at it and try to coordinate.

·2· · · · · · ·So, for example, let's just hypothesize that

·3· ·you wanted to take a PMK deposition on vegetation

·4· ·management of PG&E.· Well, if it just got -- simply came

·5· ·out of your office directly to PG&E without the ability

·6· ·of the other lawyers to coordinate on that, we would

·7· ·have a real problem.

·8· · · · · · ·So you need -- this case, like any case, has

·9· ·to work through leadership and you have to coordinate,

10· ·which means it's going to take maybe a couple of days or

11· ·it's going to take a little bit more time to get that

12· ·done.· I'm going to encourage the other lawyers to act

13· ·very rapidly in your particular case because of the

14· ·deadlines that you're now under.

15· · · · · · ·But these things have to be coordinated.· We

16· ·can't three, four -- let's say we had four or five or

17· ·six preference cases.· I see notes in here that suggest

18· ·that you might file up to 15 different preference

19· ·motions.· They could be motions that pertain to multiple

20· ·fires -- to a variety of different fires.· It's

21· ·certainly conceivable.· It could start really unwinding

22· ·all the coordination that we have here if those weren't

23· ·coordinated through leadership, so that's what has to

24· ·get done.

25· · · · · · ·There may be disputes between you and

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·1· ·leadership on that.· That's possible, and those will

·2· ·simply have to be resolved by the Court.

·3· · · · · · ·MR. SINGLETON:· Your Honor, I understand what

·4· ·the Court is saying.

·5· · · · · · ·I think the concern we have is this:· In the

·6· ·event that other motions were filed and this was

·7· ·something that affected other fires, I can see that

·8· ·issue, but this is a single discrete fire, Lobo, and

·9· ·there's only two groups that have actual plaintiffs in

10· ·it, my group and the Adler, Fox, Sieglock group.

11· · · · · · ·As the Court said, it is -- I believe the

12· ·Court used the word "impossible"; preferences are an

13· ·impossible situation for the parties under the best

14· ·circumstances.· If we have to coordinate through

15· ·leadership, if we can't serve our own discovery, if we

16· ·can't meet and confer, there's absolutely no way we can

17· ·get the case ready for trial.

18· · · · · · ·So that is a fundamental denial of due process

19· ·to Ms. Fowler, who, as the Court has recognized, has

20· ·Stage IV carcinosarcoma and is dying.· There is

21· ·absolutely no reason for us to not be allowed to serve

22· ·the discovery directly.· If the concern is duplicative

23· ·discovery, then obviously --

24· · · · · · ·THE COURT:· It's not just duplicative; it's

25· ·uncoordinated that's part of the protocol.

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·1· · · · · · ·It may well be, for example, I can imagine a

·2· ·lot of discovery demands that raise no issues.· For

·3· ·example, let's say there is a deposition of a person who

·4· ·knows about a certain piece of vegetation or a certain

·5· ·pole or a certain specific area that is unique to your

·6· ·case.

·7· · · · · · ·Well, we can tell in about four and a half

·8· ·seconds in maybe a two-minute phone call between you and

·9· ·leadership that that doesn't pose any issues at all,

10· ·right?· No one else needs to go to that deposition

11· ·necessarily; or people who might want to, they can be

12· ·alerted to it, but that's probably not going to upset

13· ·any applecarts whatsoever.

14· · · · · · ·So that's a phone call.· It might inject

15· ·another couple of hours of delay in your ability to get

16· ·a deposition notice out.

17· · · · · · ·On the other hand, I can imagine the PMK of

18· ·a -- a corporate PMK of PG&E that has to do with, you

19· ·know, topics like tell me everything about your policies

20· ·about everything -- I'm exaggerating here grossly just

21· ·to make a point -- all your policies about forest

22· ·management, all your policies about hiring third party

23· ·contractors, all your policies about -- so on and so

24· ·forth.

25· · · · · · ·At that point it's going to cause tremendous

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·1· ·chaos and that needs to be coordinated.· That will take

·2· ·longer to set up.

·3· · · · · · ·MR. SINGLETON:· I understand completely, Your

·4· ·Honor.

·5· · · · · · ·So would it be possible to have a situation

·6· ·where we can serve discovery that relates only to the

·7· ·Lobo fire and everything that involves anything broader

·8· ·can be done through leadership?

·9· · · · · · ·Our concern is --

10· · · · · · ·THE COURT:· I just don't know how to

11· ·articulate that line.· I don't know how to write that

12· ·one up.

13· · · · · · ·MR. SINGLETON:· The way that I think it would

14· ·be done, Your Honor, as an example is to grant

15· ·Ms. Fowler's counsel the right to do discovery relating

16· ·solely to the Lobo case.· If it relates to any other

17· ·cases, then it would have to be coordinated through

18· ·leadership.

19· · · · · · ·But our concern is this:· For our experts to

20· ·be ready and for them to be deposed -- and I would

21· ·imagine that will happen in about two months -- they

22· ·need, for example, the Cal Fire reports.· They need the

23· ·opportunity to inspect the evidence.· Thus far, we're

24· ·seven months after those reports have been prepared and

25· ·we still don't have them.

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·1· · · · · · ·We need the ability to file a motion to

·2· ·compel.· We asked leadership to file it.· It was filed,

·3· ·then it was taken off without our knowledge and three

·4· ·months -- without our consent.· Three months later we

·5· ·still don't have it.

·6· · · · · · ·I understand the meet and confer process is

·7· ·going on and, certainly, that's commendable, but it's

·8· ·been seven months and we need it.· And the concern that

·9· ·we have is we're working at different paces here.

10· · · · · · ·Now that we have this granted, there is a fire

11· ·under us to get this case ready to go.· If we're not

12· ·ready, that comes back on us, not leadership, and our

13· ·client has hired us and wants us to represent her.· If

14· ·we're not allowed to do discovery, we can't do that.

15· · · · · · ·So I completely understand, and if there's any

16· ·issue that relates to any case other than Lobo, I

17· ·completely have no problem with going through

18· ·leadership; but in terms of our getting this case ready,

19· ·filing the request for productions, the notices of

20· ·depositions, the special interrogatories, and requests

21· ·for admission that have to be filed, it will inject an

22· ·unnecessary element of delay in an already, to use the

23· ·Court's term, impossible progress -- process if we're

24· ·required to do that.

25· · · · · · ·So I would simply ask for the right to conduct

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·1· ·discovery on her behalf.

·2· · · · · · ·THE COURT:· You know what you want now, pretty

·3· ·much, right, at least in broad terms?

·4· · · · · · ·MR. SINGLETON:· We know certain things, but we

·5· ·need the Cal Fire report, and that's why we need to be

·6· ·able to file that.· Again, I don't know if that's an

·7· ·issue the Court is going to raise now or later, but

·8· ·we've asked for permission to file that motion to

·9· ·compel.

10· · · · · · ·THE COURT:· Let me rephrase my question.

11· · · · · · ·MR. SINGLETON:· Sure.

12· · · · · · ·THE COURT:· You know now the sorts of

13· ·discovery that you would want to issue to PG&E and you

14· ·realize that you're basically going to have about one

15· ·wave of written discovery -- time for about one wave of

16· ·written discovery, interrogatories, document demands,

17· ·RFAs, and things like that.· That's about as much time

18· ·as you'll have, and then you're going to do some

19· ·depositions and that will probably eat up the amount of

20· ·time.

21· · · · · · ·The point I'm making is you know now pretty

22· ·much what written discovery and depositions you want or

23· ·at least within a week or so, very soon, you can figure

24· ·that out, right?

25· · · · · · ·MR. SINGLETON:· We know some of it, but we

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·1· ·won't know the majority of it until we get that Cal Fire

·2· ·report.· It's the road map to how to do the case, which

·3· ·is why it's so critical.· That's why we need that

·4· ·document, why we've been trying to get it now for seven

·5· ·months, and why we're asking the Court to allow us to

·6· ·serve a motion to compel.

·7· · · · · · ·That way, if they have any kind of a

·8· ·legitimate issue, if they're going to try to assert some

·9· ·type of governmental privilege, which I think the case

10· ·law is very clear it wouldn't apply here, but if they

11· ·want to assert it, that's fine.· The Court can make a

12· ·decision.

13· · · · · · ·But the problem is leadership has been meeting

14· ·and conferring with us not involved with the various

15· ·counties for seven months and we still don't have the

16· ·reports or access.· We need to have that happen

17· ·immediately.

18· · · · · · ·So one of the things that we're asking for is

19· ·the right to file a motion to compel the Cal Fire report

20· ·in Lobo and inspection, and we'd like an order

21· ·shortening time on that so that it can be done post

22· ·haste.

23· · · · · · ·But, again, setting depositions, these are the

24· ·kind of things that we need to be able to do.· Certainly

25· ·we'll ask other people.· If they're interested, we'll

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·1· ·try to accommodate everyone, but the number one concern

·2· ·here has to be getting this case worked up for the

·3· ·preference plaintiff, who is dying.

·4· · · · · · ·THE COURT:· Thank you.· I appreciate that.

·5· · · · · · ·Others wish to be heard on this topic?

·6· · · · · · ·MR. BAGHDADI:· Your Honor, if I may be heard

·7· ·briefly.

·8· · · · · · ·THE COURT:· Of course.

·9· · · · · · ·MR. BAGHDADI:· Good afternoon, and may it

10· ·please the Court, Khaldoun Baghdadi.

11· · · · · · ·The entire process that the Court just

12· ·outlined for Mr. Singleton, the confusion, the potential

13· ·chaos, the need to coordinate, is exactly what we tried

14· ·to do with the preference process.

15· · · · · · ·Since August we established a preference

16· ·committee, circulated a protocol, wanted to obtain and

17· ·elicit the orderly and efficient exchange of information

18· ·so that we would be avoiding these specific conundrums

19· ·because never would I ever want to stand as an officer

20· ·of the Court and say Ms. Fowler shouldn't get her day in

21· ·court, but the process by which that is decided should

22· ·follow some coordination.

23· · · · · · ·What we have in this case is 50 firms that

24· ·have agreed to a coordinated process in obtaining the

25· ·information for preference.· Do we have the information

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·1· ·necessary, which fires are we talking about, how can we

·2· ·exchange this information in an orderly fashion, how do

·3· ·we trigger a meet and confer process, could there be

·4· ·more than one case that would qualify as a preference,

·5· ·which we could then use as a bellwether?

·6· · · · · · ·And in that process what we've done is told

·7· ·our constituent law firms and some of my own clients, we

·8· ·understand what you're going through.· We know you've

·9· ·got a client who might be a 36(a) mandatory preference,

10· ·but we need to do this in an orderly fashion so that we

11· ·don't just rush the Court.

12· · · · · · ·What happened here is in this specific motion

13· ·that was before the Court, there was a steady refusal to

14· ·participate meaningfully in the preference protocol

15· ·process and the motion followed.· We then filed our case

16· ·management statement and sought to be heard on calendar

17· ·at the same time because we don't want to stand

18· ·substantively in the way of anybody under 36(a), but

19· ·cannot have a situation where the JCC process is

20· ·rendered meaningless when all you have is a series of

21· ·uncoordinated preferences.

22· · · · · · ·We must now turn back to our constituents and

23· ·say we want this protocol, we want this process, we want

24· ·to be able to have a seven-day meet and confer period

25· ·with PG&E.· Why?· So that we can know we've got four

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·1· ·Atlas preferences, we've got 30 preferences that we

·2· ·could be filing.

·3· · · · · · ·The specific issue you just encountered here

·4· ·at this podium from Mr. Singleton is exactly what we

·5· ·were trying to avoid, that the coordination, not just

·6· ·apply to discovery but to preferences as well; and not

·7· ·at the risk of someone losing their substantive rights,

·8· ·but that the decision to grant that preference be

·9· ·considered in addition to others as part of the broader

10· ·case management plan, which this Court is vested with

11· ·the power to do under the rules of court.

12· · · · · · ·That's just the observation I wish to make.

13· · · · · · ·And so, the coordination of discovery, once we

14· ·start creating separate tracks for every attorney that

15· ·wants to file 27, 28 preference motions, our job as

16· ·liaison and lead to bring this in to you with the issues

17· ·teed up, with the disputes focused, becomes untenable

18· ·because the constraints imposed by due process under

19· ·36(a) at some juncture have to yield to the procedural

20· ·considerations that any preference be ruled upon and

21· ·addressed according to an orderly protocol.

22· · · · · · ·So we cannot coordinate any discovery if we

23· ·have a rush on preference motions, which I fear may

24· ·follow, when we have another person saying, well, I've

25· ·got a Pocket preference, I want to conduct my own

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·1· ·discovery on Pocket, Your Honor, it won't have anything

·2· ·to do with broader fires, just Pocket.

·3· · · · · · ·Well, we got coordinated in San Francisco on

·4· ·the basis that the fire may have happened in Nevada

·5· ·County, but the decisions we contend that led to it --

·6· · · · · · ·THE COURT:· Just one moment.

·7· · · · · · ·(Interruption.)

·8· · · · · · ·THE COURT:· Is somebody on the telephone?

·9· · · · · · ·MR. BAGHDADI:· The decisions that led to the

10· ·fire be it vegetation management, risk management,

11· ·corporate enterprise, took place here in San Francisco.

12· · · · · · ·Eventually we're going to have be getting to

13· ·corporate discovery, as we work with PG&E to roll out

14· ·production of evidence.

15· · · · · · ·Now, we know it would be need to be expedited

16· ·for preference cases, but we fear that enabling a

17· ·preference motion to proceed in the absence of a broader

18· ·coordination process is going to make it very difficult

19· ·if not impossible for us to continue in that

20· ·coordination process.

21· · · · · · ·THE COURT:· Well, the plan that you have in

22· ·the proposed CMO, the net of it is, I think, and it

23· ·probably has to be that a certain process is gone

24· ·through, but at the end of the process, if a plaintiff's

25· ·counsel believes that they need to file a preference

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·1· ·motion, they file it, right?

·2· · · · · · ·MR. BAGHDADI:· Correct.

·3· · · · · · ·THE COURT:· We're not going to stop anybody

·4· ·from filing a preference motion.

·5· · · · · · ·MR. BAGHDADI:· Nor can we.

·6· · · · · · ·THE COURT:· Nor can we.· We can't do that.

·7· · · · · · ·MR. BAGHDADI:· Correct.

·8· · · · · · ·THE COURT:· So the issues are going to come

·9· ·up.

10· · · · · · ·I mean, the issue that we have today is a

11· ·foretaste of possible issues that we're going to have

12· ·coming up.

13· · · · · · ·So just to focus on today's specific issue,

14· ·the Cal report on Lobo, the request has been made that

15· ·at least that motion get teed up, we go ahead and have

16· ·that motion.· What do you think?

17· · · · · · ·MR. BAGHDADI:· Well, you've got the attorney

18· ·general's office, which we've been coordinating on.

19· · · · · · ·And we did file a motion, as the Court is

20· ·aware, and it drew an objection and we were able to

21· ·reach an accord with them.

22· · · · · · ·The problem specifically with Lobo is that the

23· ·Nevada County district attorney has not responded as of

24· ·yet since that case could be potentially under criminal

25· ·investigation.

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·1· · · · · · ·We obtained an agreement to share materials

·2· ·and evidence on Atlas, Norrbom, Adobe -- the majority of

·3· ·the fires.· And indeed, the process is such that when

·4· ·we're dealing with over a dozen fires, at some times we

·5· ·need to be systemic about the approach as opposed to

·6· ·making a motion to compel on one discrete issue.

·7· · · · · · ·The AG's level of cooperation may change if

·8· ·they're faced with a Lobo motion; but perhaps by going

·9· ·through our protocol process we learn there's more than

10· ·one Lobo case that is suitable for preference or there's

11· ·more than one Sulphur case.

12· · · · · · ·Before we unleash every preference motion as

13· ·it happens, could we have perhaps an orderly

14· ·coordination of that so that if it's not this Court,

15· ·whomever it is, is not inheriting more swipes at the

16· ·preference process so that we can then prioritize and

17· ·tell the attorney general, listen, we've got three

18· ·preference cases.· That case is set for trial per 36(a).

19· ·It will not be moved.

20· · · · · · ·We need this material or we have to file the

21· ·motion.· We can renew the motion.· We obtained their

22· ·agreement to refile and renew it.· We have no problem

23· ·doing that, so once we create -- I apologize.

24· · · · · · ·THE COURT:· No.

25· · · · · · ·MR. BAGHDADI:· Once we create separate tracks

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·1· ·for every person who decides not to participate and then

·2· ·file a motion of their own, we cannot deliver what

·3· ·you've asked us to do, which is get this case ready for

·4· ·trial and bring it in through trial or settlement.· We

·5· ·won't be able to do that, sir.

·6· · · · · · ·THE COURT:· It's a very difficult situation.

·7· · · · · · ·I think there is a federal judge who, within

·8· ·the last month and a half or something like that, if I

·9· ·recall correctly, denied a preference motion on the

10· ·basis of the fact that it was part of what I'll call a

11· ·coordinated action, maybe it was an MDL or something

12· ·like that, and on that basis denied the preference

13· ·motion.· I found that interesting.

14· · · · · · ·So it's unlikely something like that will

15· ·happen in state court.· We have the statute.

16· · · · · · ·And I think what you're suggesting, if I

17· ·understand it correctly, is that with respect to this

18· ·motion, Cal Fire or some other discovery motion, which

19· ·is thought to be urgent by an attorney because, for

20· ·example, they have made a preference motion and it has

21· ·been granted, the way to handle it is in the first

22· ·instance to go through leadership, get it coordinated,

23· ·give that some time to work out, whatever that is, if

24· ·it's a week, whatever that time period is, it has to be

25· ·a fairly short fuse.

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·1· · · · · · ·And if that attorney is then frustrated by the

·2· ·reaction that comes from you and your colleagues sitting

·3· ·at that table, then that attorney can go to the judge

·4· ·and say, you know, it's not working out with these

·5· ·people, I've tried to coordinate with them and they

·6· ·think this is the wrong time to bring this motion for

·7· ·whatever reason, they may have good reasons for that

·8· ·position, but I need it now because I have 100 days left

·9· ·to finish and that gets brought to the judge.

10· · · · · · ·Is that your view as to how it works?

11· · · · · · ·MR. BAGHDADI:· My view is as CMO1

12· ·contemplates, if any lawyer for any client feels that

13· ·their interests aren't being adequately represented,

14· ·they can come to the Court.

15· · · · · · ·We are given the position of leadership not

16· ·because we drew a short straw; because we demonstrated

17· ·with the Court that we're trying to compete with the

18· ·interests of all our clients for all the fires versus

19· ·the interests of one lawyer and his or her own.

20· · · · · · ·And even the coordination process of

21· ·preference -- and I understand that motion was denied on

22· ·the basis of its substantial interest in the litigation

23· ·as a whole was defined as the broader litigation as a

24· ·whole as opposed to that one case.

25· · · · · · ·I don't believe 36(a) enables such balancing.

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·1· ·I do believe that the Court's inherent authority would

·2· ·enable that motion to be continued and considered then

·3· ·on its substance and on its merits as part of a broader

·4· ·CMO process for preference to avoid that very issue.

·5· · · · · · ·I see nothing in the case law, be it Fox or

·6· ·otherwise, where the Court's inherent authority or under

·7· ·1540 or 1541 could say I see what you've got here. I

·8· ·think you've satisfied the elements; however, under my

·9· ·inherent authority, I'm going to continue your hearing

10· ·because I don't know what else is coming down the pike,

11· ·I don't know who's going to be handling these, and if

12· ·there is more than one preference motion for the same

13· ·court or county, it would be nice to know that before we

14· ·start calling other judges to transfer.· That's where I

15· ·could come down on this.

16· · · · · · ·As for the coordination of discovery

17· ·specifically, Your Honor, the process is working.· Is it

18· ·working as fast as I would like?· Absolutely not. I

19· ·would like to have more, but in terms of the substantial

20· ·completion of document discovery, which we've been

21· ·through in PG&E's backup tape system, which I believe is

22· ·on a Betamax or some other novel technology that's being

23· ·used, we're going to need to get the cases ready.

24· · · · · · ·If there are preference motions, more than

25· ·one, we want to be aware of them and we want to be able

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·1· ·to effectively dedicate our time and resources to them

·2· ·so that it is not haphazard.

·3· · · · · · ·So the issue that you raised with

·4· ·Mr. Singleton is spot on.· It's exactly why we want a

·5· ·CMO6 heard, so that any preference motion be considered

·6· ·part of that broader analysis and that once preferences

·7· ·are decided, we can accommodate the discovery of those

·8· ·cases.· If we've got three preferences in Sulphur, we've

·9· ·got to activate on Sulphur more so than we are already,

10· ·because, candidly, our focus right now is Atlas because

11· ·we want to be ready for trial in September.

12· · · · · · ·THE COURT:· It's a long-term problem, but I

13· ·think about 5 percent of the population in California is

14· ·75 and older, so 5 percent of the caseload.· You know,

15· ·you can come up with your own numbers.· There are a lot

16· ·of cases here, so we're talking about a lot of potential

17· ·preference motions coming down.

18· · · · · · ·And the risk, number one, that's a very

19· ·serious problem for those particular plaintiffs,

20· ·extremely serious, but it's also a deep threat to the

21· ·coordination of these cases and the ability to manage

22· ·these cases.

23· · · · · · ·I appreciate your thoughts.· Thank you, sir.

24· · · · · · ·MR. BAGHDADI:· I understand Mr. Pitre had --

25· · · · · · ·MR. PITRE:· Just one thought, Your Honor.

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·1· · · · · · ·This Court is not the first court that's had

·2· ·to deal with this issue.· Other state courts have had to

·3· ·deal with this issue.· We felt that their hands were not

·4· ·tied by CCP 36 in that 1504 gave them the ability to

·5· ·manage a case in a way where the court could consider

·6· ·preference cases along with test cases, so that if a

·7· ·case was tried and it was determined that we needed to

·8· ·grant a preference, we took preference cases, we mixed

·9· ·them in with test cases so when that case got tried, it

10· ·served as benchmarks that could provide the persuasive

11· ·authority that this Court recognized when it issued CMO

12· ·number four.

13· · · · · · ·And if I could just take a brief moment, what

14· ·was done in the Butte case is a motion for preference

15· ·had been filed; however, what the judge wanted is the

16· ·judge said, if I'm going to try a preference case, it

17· ·seems to me that that's the prime opportunity to also

18· ·bring in test cases, because then a test case or a

19· ·variety of types of damages of cases could then be used

20· ·to establish a matrix, which would then be used to

21· ·resolve then 2000 to 3,000 different plaintiff cases.

22· · · · · · ·So the plan that this group had was to go

23· ·through preference protocols, see what we have.· Now,

24· ·the difference between Butte and what we have here is we

25· ·have 17 fires.· So, ideally, in terms of an overall

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·1· ·management plan, we're taking a look at all the various

·2· ·preference cases and which fires that they impact.

·3· · · · · · ·We then blend in, to the extent that we don't

·4· ·have representative cases of some of the claims, test

·5· ·cases, but it allows -- it allows us to develop an

·6· ·overall plan that then can be used to resolve all cases.

·7· · · · · · ·If all we do is try one case and it's a

·8· ·preference case, it teaches us nothing.

·9· · · · · · ·And the problem that I see, Judge, is -- I

10· ·want to come back to in the Butte case, the Court

11· ·continued the hearing on the preference motion because

12· ·the concern was that we were going to waste time with

13· ·just preference cases.

14· · · · · · ·The other thing that I think is very important

15· ·about the Butte case is the preference motions, from a

16· ·timing standpoint, were not brought until after

17· ·substantial completion of discovery to avoid the issues

18· ·that Mr. Baghdadi and you, Your Honor, addressed with

19· ·Mr. Singleton.

20· · · · · · ·And let me give you an example.· The Lobo is a

21· ·tree line case.· Vegetation management is at issue.· If

22· ·we're looking at this case from the standpoint of all

23· ·the claims that are asserted in the master complaint, we

24· ·have to look at a variety of different claims being

25· ·asserted, including a claim for punitive damages.

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·1· · · · · · ·Now, the last time we came before the Court,

·2· ·the plaintiffs' committee submitted to the Court an

·3· ·overall plan detailing all the witnesses that they

·4· ·believe would be required in a tree line contact case,

·5· ·and the discovery -- we actually had times for each

·6· ·witness.

·7· · · · · · ·If we take the Lobo case and we give that a

·8· ·trial of April 29th and you back out, A, a summary

·9· ·judgment motion, which has to be filed 75 days before

10· ·the trial -- actually, 105 days, 30 days for the hearing

11· ·and then 75 days back.

12· · · · · · ·So let's back out 105 days for the filing of

13· ·the motion.· If you look at when expert disclosures and

14· ·all the evidence has to be gathered together and you

15· ·consider the fact that document production, as is

16· ·presently constituted, will not be completed until

17· ·middle of February.

18· · · · · · ·If Mr. Singleton chooses to start taking

19· ·vegetation management depositions of people who made

20· ·decisions on whether or not the tree that contacted this

21· ·line was a hazard tree and should have been removed and

22· ·then trying to determine whether PG&E was negligent or

23· ·worse, if we don't have all the documents to have

24· ·digested by then, if we don't have the ability to

25· ·properly work up that case, then you're going to have

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·1· ·potentially a decision being made by a judge that sits

·2· ·in Sacramento on a record that is not complete that then

·3· ·will serve as what?

·4· · · · · · ·No instruction whatsoever because we wouldn't

·5· ·have had the ability to fully develop the evidence so

·6· ·that it could be marshaled to oppose the summary

·7· ·judgment motion.

·8· · · · · · ·The impacts here are enormous and that's why,

·9· ·although Mr. Singleton may want to have his own

10· ·discovery, there's nothing to suggest that that

11· ·discovery and the timing will coincide with all of the

12· ·other discovery that needs to be done to get a properly

13· ·developed negligence or, worse, punitive damage case so

14· ·that if a decision is made, it has some persuasive

15· ·influence on the rest of us.

16· · · · · · ·That's why, Your Honor, in the Butte case we

17· ·as leadership made sure that before preference motions

18· ·were filed, appropriate discovery had been done, so as

19· ·not to prejudice the rights of everybody else.

20· · · · · · ·So the concern that is expressed here -- and I

21· ·want to echo soundly, is that I could see what would

22· ·happen if a deposition was prematurely noticed and we

23· ·believe that if all the documents and discovery wasn't

24· ·developed so we could take an effective deposition, PG&E

25· ·is going to claim you only get one bite of this apple.

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·1· ·We're not bringing this same person back to be deposed

·2· ·three months from now, just because you haven't

·3· ·completed your work.· It got noticed in the Lobo case,

·4· ·you take your questions, but we're not going to have

·5· ·duplicative discovery and more discovery going on from

·6· ·the same witness.

·7· · · · · · ·So it causes complete disruption of the

·8· ·orderly process of how we pursue this case.

·9· · · · · · ·The McGhan case that was cited in the CMC

10· ·statement had some very important language that I think

11· ·really is instructive for everybody.· There may be some

12· ·delay that impacts some cases, but when you have a

13· ·coordinated proceeding, really, the goal line is what is

14· ·in the best interest for resolution on behalf of

15· ·everyone?· We shouldn't sacrifice one case to the

16· ·detriment of thousands of others that are pending when

17· ·the instructive value of that case is not going to

18· ·provide anything that can be useful in an overall

19· ·process of resolution.

20· · · · · · ·We interject conflict, we interject perhaps

21· ·differing decisions, and we create chaos in an otherwise

22· ·process that requires an enormous amount of coordination

23· ·and preparation to do this effectively.

24· · · · · · ·THE COURT:· Well, even under your proposed

25· ·plan, the CMO, we could have a situation in which an

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·1· ·attorney goes to leadership and says I need to press my

·2· ·preference motion; leadership says, this -- this is not

·3· ·a great time.· It would be good if we did this in five

·4· ·months from now, and the first attorney says, my client

·5· ·is dying, my client is going to be dead in two and a

·6· ·half months or whatever and I need to press this. I

·7· ·disagree with you, leadership, I'm going to go to the

·8· ·court.

·9· · · · · · ·Judge, here's the motion, the requirements for

10· ·36 are met, and the judge thinks that postponing the

11· ·hearing or continuing the hearing is sort of perhaps a

12· ·back way around trying to avoid the statutory mandate,

13· ·and so ends up granting the motion.

14· · · · · · ·This problem -- we can't get away from this

15· ·problem.· There are going to be situations and this --

16· ·we may have run into the first one now, but there are

17· ·going to be situations, are there not, in which the

18· ·needs of this one case to get maybe a PMK depo from PG&E

19· ·on forest management or something, that has to happen

20· ·and the way -- one way to solve that problem, which is

21· ·to say the problem that normally PG&E only has to give

22· ·up their witness once and can basically tell the rest of

23· ·the plaintiffs, arguably, this was your shot, is to make

24· ·it clear that in these sort of unique circumstances,

25· ·PG&E may have to produce that witness again.

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·1· · · · · · ·Because we don't want to have a situation in

·2· ·which everybody feels at next week's forest management

·3· ·PMK deposition of PG&E that this is their only chance.

·4· ·We don't want to have a situation in which everybody

·5· ·feels they have to show up.· That's not fair.· It's not

·6· ·fair to anybody else in these cases.· You don't have the

·7· ·documents yet.· You don't have your questions yet for

·8· ·these people.

·9· · · · · · ·But one attorney has decided that he does have

10· ·his questions and he does have the data that he needs,

11· ·so maybe the way to handle it is let him go ahead and

12· ·have that PMK, and PG&E may need to produce the witness

13· ·again down the road, to make that clear in writing.

14· ·Takes care of at least that problem.

15· · · · · · ·What I'm suggesting in a broader sphere is

16· ·that there's actually no good answer to any of this;

17· ·there's no answer.

18· · · · · · ·For example, you talk about summary judgment

19· ·motions.· I have tried to find an appellate case that

20· ·considers two conflicting statutory mandates.· The first

21· ·mandate is the preference that you have 120 days to go.

22· ·The second is -- and there's some authority to this --

23· ·that parties have a statutory right to file a summary

24· ·judgment motion.· For example, there's the case that

25· ·says something like if you have a newly-entered party

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·1· ·and they come in, but the trial date when they come in

·2· ·is so close that they don't have a right to make a

·3· ·summary judgment motion, they don't have the time to

·4· ·make it.· The judge is supposed to continue the trial

·5· ·date in deference to the statutory right to make a

·6· ·summary judgment motion.

·7· · · · · · ·But we have -- these two statutes block each

·8· ·other.· They're inconsistent with each other.· There

·9· ·isn't going to be time in the Fowler case to make a

10· ·summary judgment motion.· It's impossible.· The work --

11· ·you can't get the discovery done in the next week or two

12· ·in time to prepare the papers so that the summary

13· ·judgment motion will be heard 30 days before trial and

14· ·still have the 75- to 80-day notice period for summary

15· ·judgment motion.

16· · · · · · ·It can't happen.· It just can't happen.· So

17· ·there's a whole bunch of things that kick in once we've

18· ·a preference motion.· Once it's granted, a whole bunch

19· ·of rights just get wiped out as a result of this.· This

20· ·is the imperfection of a trial that goes to trial

21· ·because of a preference motion.· People don't have the

22· ·evidence they need, they don't have the discovery, they

23· ·don't have time to get everything done.

24· · · · · · ·Especially in cases like this where there's

25· ·some document-intensive situations, they don't have time

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·1· ·to make summary judgment motions, they don't have time

·2· ·to do any of this, so it's an impossible situation, and

·3· ·I don't know how we're going to avoid these issues.

·4· · · · · · ·I think one way to do it is to give leadership

·5· ·the first crack at trying to coordinate this, to go

·6· ·through leadership.· I want this deposition, I want that

·7· ·deposition, I want to make this motion.· See if there's

·8· ·something that you can do, knowing everything that you

·9· ·know about all the different cases and where you are.

10· · · · · · ·And then, if there's no meeting of the minds

11· ·in terms of how to progress, the Mr. Singletons of the

12· ·world will perhaps have to be allowed to bring the issue

13· ·to the Court and sometimes just move forward on a

14· ·deposition, for example, that otherwise wouldn't have

15· ·taken place.

16· · · · · · ·What do you think about that?

17· · · · · · ·MR. PITRE:· Well, if that's the case, I think

18· ·we've set ourselves up for chaos, Your Honor, to be

19· ·quite candid.

20· · · · · · ·THE COURT:· How does one avoid that?

21· · · · · · ·MR. PITRE:· Certainly, Your Honor, you have

22· ·the power, because under 1504 the Court has the right to

23· ·manage this as a coordinated proceeding and it

24· ·understands as the McGhan case stated, is that there are

25· ·going to be some delays to some people because the

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·1· ·overall goal is resolution of the entirety.

·2· · · · · · ·And here's what I want to call the worst case

·3· ·scenario:· There's 17 fires.· Lawyers are emboldened by

·4· ·the fact that I go through a process, leadership says we

·5· ·can't do it, so now what I want to do is I want to have

·6· ·a case tried in all 17 fires and I want to do this in

·7· ·six different counties.

·8· · · · · · ·Now what we've done, through the guise of a

·9· ·preference motion, is we've completely disintegrated

10· ·what we all said at the beginning, the first day we came

11· ·in before this Court and everybody was here and said we

12· ·all agree the cases should be coordinated because there

13· ·are common issues that apply across the board.

14· · · · · · ·Well, what we would do then is we would invite

15· ·15, 20 different cases, taking place all within 150 days

16· ·because I can see what's going to happen, Your Honor, is

17· ·people are going to be encouraged.· They're all going to

18· ·find preference cases and say, look it, I don't have to

19· ·go through this protocol because leadership is never

20· ·going to agree that my fire is more important because my

21· ·client has an illness.

22· · · · · · ·So now we have a bunch of cases before you or

23· ·the next judge.· They use this decision as precedent and

24· ·they all say I want my day in court in Nevada County, in

25· ·Sonoma County, in Napa County, in Lake County.

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·1· · · · · · ·Now we've created nothing but chaos.· You

·2· ·can't have coordinated proceedings because everybody has

·3· ·a different idea.· You've got the pole cases.· You have

·4· ·line slap cases.· You've got tree line contact cases.

·5· ·Now we've just destroyed a coordinated proceeding.

·6· · · · · · ·THE COURT:· So you think 1504 sort of trumps

·7· ·section 36?

·8· · · · · · ·MR. PITRE:· Absolutely.· Absolutely.

·9· · · · · · ·And there's suggestion of that in the Abelson

10· ·v. National Union case that was cited, I believe, by

11· ·Mr. Singleton in his briefs, where, you know, an issue

12· ·had come up and I know it because it was decided against

13· ·our firm, where we were trying to use -- there were a

14· ·number of elderly people who had been the victims of a

15· ·financial fraud.

16· · · · · · ·And what the court wanted to do is take one

17· ·group of cases and the findings from that case and apply

18· ·it to hundreds of other cases that were set because

19· ·there were a number of elderly people, all of which

20· ·concerns were they weren't going to make it.

21· · · · · · ·You know, the trial court said, well, I'm

22· ·going to say that the findings in trial number one on

23· ·the test cases are going to apply to all the rest of the

24· ·cases and I'm going to apply a limited collateral

25· ·estoppel.· The court of appeal said, no, you can't do

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·1· ·that.

·2· · · · · · ·So there was an issue that came up and the

·3· ·issue that came up that I'd ask the Court to take a look

·4· ·at is whether under 1504, which I believe it can, the

·5· ·Court can look at the interests of the overall

·6· ·management of the cases in light of what we see as

·7· ·CCP 36(a) and decide that the overall interests, whether

·8· ·the Court wants to take it as does this client have a

·9· ·substantial interest in the overall proceeding, the one

10· ·preference case, and looking at substantial interests in

11· ·the context of a coordinated proceeding -- I've seen

12· ·some courts go that route.

13· · · · · · ·I've also seen some courts take the route that

14· ·1504 and their inherent ability to manage cases in a

15· ·coordinated proceeding trumps that.

16· · · · · · ·So I would just suggest that one of the ways

17· ·to avoid the dilemma really is what Mr. Baghdadi said,

18· ·which is to have the Court's ruling on the 36 issue for

19· ·the Fowler decision continued until we can go through

20· ·the process that we have laid out in CMO number six and

21· ·then be able to look at what that appears to be in the

22· ·context of all people who, similarly, like Ms. Fowler,

23· ·have a legitimate right to a preference trial, and then

24· ·decide how are these cases going to be managed in the

25· ·overall context of giving everybody that same right if

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·1· ·that's something that the Court is inclined to do.

·2· · · · · · ·Because I think, one, it sends a message to

·3· ·everybody that there is a process in a coordinated

·4· ·proceeding that has to be followed and you cannot on

·5· ·your own take it on yourself to devise your own plan;

·6· ·two, it allows everybody who's in the same boat who has

·7· ·the right to a preference motion to be able to have

·8· ·their day in court on an expedited basis, whatever that

·9· ·may be, so there's fairness that's uniform; three, it

10· ·gives leadership for the plaintiffs and PG&E the ability

11· ·to sit down and then say, okay, folks, we had a plan

12· ·without preference.· We need to revise the plan.· We

13· ·need to figure out a better way to get this stuff done

14· ·on a better basis and start to understand a revised

15· ·model because the way it is now, it will be chaos in

16· ·trying to get depositions organized, what documents get

17· ·produced first, what documents get produced last, whose

18· ·deposition takes precedence.

19· · · · · · ·You can't do that, Judge.· There's got to be a

20· ·plan, and the plan to, to me, would be as follows:· You

21· ·take the preference cases, you find out how many we

22· ·have -- do we have 30, do we have 50, or do we have a

23· ·hundred?

24· · · · · · ·How many fires are impacted?· If only a subset

25· ·of those fires are impacted, then let's forget about

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·1· ·discovery in the other cases.· Let's focus on the fires

·2· ·that are at hand and let's devise a plan for getting

·3· ·those done.

·4· · · · · · ·Of those fires, how many are tree line

·5· ·contact, how many are pole, how many are something else,

·6· ·what discovery is necessary?

·7· · · · · · ·Now we come at this Court or whoever follows

·8· ·you with a better organized plan on how things can get

·9· ·done and you decide on trial dates that work; because

10· ·I'm not sure that this Court or whoever follows you

11· ·wants to set trials that will all be going at the same

12· ·time, 150 or 180 days from the filing of the next wave

13· ·of preference motions.

14· · · · · · ·I don't think PG&E is going to go along with

15· ·that.· Maybe they will, but it gives the Court a better

16· ·idea and the parties and counsel to put together an

17· ·effective plan; or else we have a bunch of what I want

18· ·to call just wild mavericks all going out and doing what

19· ·they want to do because they say, well, it's my decision

20· ·on behalf of my client that needs this discovery to go

21· ·first.

22· · · · · · ·And that just can't go on, Your Honor.

23· · · · · · ·THE COURT:· Thank you.

24· · · · · · ·MR. PITRE:· Thank you, Your Honor.

25· · · · · · ·THE COURT:· Let me just make sure I've heard

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·1· ·from other people first.

·2· · · · · · ·Is there anybody else at plaintiffs' table who

·3· ·would like to speak?

·4· · · · · · ·Would PG&E like to be heard?

·5· · · · · · ·MS. HERNANDEZ:· Your Honor, I would just echo

·6· ·what Mr. Pitre and Mr. Baghdadi said and the Court's

·7· ·concerns if you let the -- as you said -- what you said

·8· ·multiple times, preference motions are complicated in a

·9· ·coordinated proceeding, and there might be times that

10· ·you actually have to move forward because of the

11· ·statutory right with some trials, but that is quite

12· ·different from having a subset of plaintiffs just

13· ·separate themselves from the coordinated proceedings.

14· · · · · · ·That just leads to inefficiency.· It leads to

15· ·the coordinated proceedings just being debunked.· But

16· ·most importantly, actually, the piecemeal discovery

17· ·requests to PG&E is just prejudicial.

18· · · · · · ·The process that you actually put in place in

19· ·CMO1 where all coordinated discovery was going through

20· ·leadership has actually been working.· Mr. Singleton got

21· ·up here and said that he needs to actually be the one

22· ·who directly requests discovery from PG&E because

23· ·otherwise his client will be prejudiced.· That's not

24· ·true.

25· · · · · · ·As of today the leadership has served us with

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·1· ·100 document requests specifically to Lobo, 30

·2· ·interrogatories, and 40 RFAs.

·3· · · · · · ·And if Ms. Fowler continues to have

·4· ·Lobo-specific requests, they can still go through

·5· ·leadership.· Like you said earlier today, to the extent

·6· ·that Ms. Fowler feels that there's some critical

·7· ·discovery that's not happening through leadership, that

·8· ·could be raised directly with the Court to no prejudice

·9· ·to her.

10· · · · · · ·So I don't think that Mr. Singleton has made a

11· ·showing that he's being disadvantaged in any way by not

12· ·dealing directly on discovery with us.

13· · · · · · ·THE COURT:· Thank you very much.

14· · · · · · ·Yes, sir.

15· · · · · · ·MR. SINGLETON:· Thank you, Your Honor.

16· · · · · · ·Mr. Petri talked about things that are

17· ·suggested in the McGhan case.· We're very fortunate

18· ·because this particular statute, 36(a), is not one that

19· ·we have to guess at what the legislature intended or at

20· ·how the court of appeal is going to interpret it in

21· ·complex cases.

22· · · · · · ·Fortunately, there are several cases that

23· ·directly refute the suggestions made by plaintiffs'

24· ·counsel that the Court has discretion to delay or to do

25· ·anything else.

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·1· · · · · · ·Let me read just a couple of things that the

·2· ·court of appeal had said.· This is from the Koch-Ash,

·3· ·case.· Madam Reporter, that would be K-O-C-H, dash,

·4· ·A-S-H.

·5· · · · · · ·The appellate court issued the writ holding

·6· ·section 36(a), quote, is mandatory and absolute in its

·7· ·application and does not allow a trial court to exercise

·8· ·the inherent or statutory general administrative

·9· ·authority it would otherwise have, close quote.

10· · · · · · ·That was a decision that was made in a complex

11· ·case, Koch-Ash.

12· · · · · · ·Now, the Koch-Ash court goes on to say, quote,

13· ·if trial courts or, in this case, plaintiff counsel

14· ·believe that certain exceptions to section 36 are

15· ·necessary in complex consolidated actions, their remedy

16· ·lies in persuading the legislature to amend the absolute

17· ·language of section 36, close quote.· That is at page

18· ·699.· The preceding quote was at page 698 in Koch-Ash.

19· · · · · · ·This is not just Koch-Ash.· For example,

20· ·Swaithes, S-W-A-I-T-H-E-S, says, quote, mere

21· ·inconvenience to the court or to other litigants is

22· ·irrelevant.· The trial court has no power to balance the

23· ·differing interests of opposing litigants in applying

24· ·the provision, close quote.

25· · · · · · ·The provision in that case being section 36.

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·1· · · · · · ·Now, Mr. Petri correctly points out in the

·2· ·Abelson case, which is A-B-E-L-S-O-N, which is cited in

·3· ·our papers on page 4, line 21, the court took advantage

·4· ·of the fact that a preference case had been filed and

·5· ·said, in addition to that, we're going to go ahead and

·6· ·put in other cases so that there's more than one case

·7· ·being tried.

·8· · · · · · ·We certainly have no objection if the Court

·9· ·wants other cases from the Lobo fire to be tried along

10· ·with Ms. Fowler's.· That would be what Abelson says, but

11· ·Abelson certainly does not stand for the provision that

12· ·the court may say, I'm going to delay a preference trial

13· ·until such time as other cases are ready.

14· · · · · · ·Respectfully, I was also in the Butte case.

15· ·I'm also a member of leadership in Butte.· And that is

16· ·not what happened in Butte.· What happened in Butte is

17· ·people filed their preference motions, court granted

18· ·them, and there were two different dates set.· One was

19· ·for preference cases and the other was for a bellwether

20· ·case that would proceed -- I believe it was 30 days, it

21· ·might have been six weeks -- after the preference cases

22· ·were done.· That was how the Butte case was handled.

23· · · · · · ·I want to very briefly just touch on something

24· ·the Court said because the Court said something that

25· ·struck a chord with me when it said if an attorney has

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·1· ·tried to go through leadership and has been unsuccessful

·2· ·for whatever reason -- it could be leadership's fault,

·3· ·could be my fault -- for whatever reason is

·4· ·unsuccessful, the Court can -- I'm sorry, the attorney

·5· ·can then come to the Court and say, I need relief.

·6· · · · · · ·That's where I am now.· We have been asking.

·7· ·We have been pushing on Lobo for a long time.· We've

·8· ·been trying to get the reports.· We have been the ones

·9· ·pushing this for seven months and we've been successful

10· ·so all we're asking is we think seven months of meeting

11· ·and confer is long enough.· We would like to be able to

12· ·file a motion to compel so that we can get the Cal Fire

13· ·report and an inspection of evidence in Lobos so that

14· ·our experts can be ready so that they can get meaningful

15· ·depositions, as PG&E is certainly entitled to.

16· · · · · · ·Thank you very much, Your Honor.

17· · · · · · ·THE COURT:· Thank you, sir.

18· · · · · · ·MR. PITRE:· I will be 30 seconds, Your Honor.

19· · · · · · ·The choice of language when we're looking at

20· ·this issue of preference motions and the Court's ability

21· ·to manage is very important, and I know that this Court

22· ·is a student of looking at cases.

23· · · · · · ·The word complex case, consolidated case, and

24· ·coordinated cases have a very important meaning.· The

25· ·cases that were just cited to you occurred in the

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·1· ·context of a complex designated case, which His Honor

·2· ·sits in complex, as well as a consolidated case.· No

·3· ·case has suggested in a coordinated proceeding where one

·4· ·has thousands of individuals that are impacted that

·5· ·CCP 36 trumps, and that's the distinction.

·6· · · · · · ·That's the only thing I wanted to say,

·7· ·Your Honor.

·8· · · · · · ·THE COURT:· Thank you, sir.

·9· · · · · · ·Well, let me ask one question about -- let's

10· ·go directly to the proposed orders.· I don't know if you

11· ·have originals to leave off here to be signed.· Somebody

12· ·does.

13· · · · · · ·MR. SKIKOS:· (Indicating.)

14· · · · · · ·THE COURT:· Thank you, Mr. Skikos.

15· · · · · · ·But I just have, really, one question on

16· ·number five.

17· · · · · · ·First of all, number five, you suggested that

18· ·I sign off on your stipulation as opposed to -- well,

19· ·you've suggested I sign off on a stipulation and then

20· ·also sign the order itself.· I think you just want me to

21· ·sign the order itself, number five.

22· · · · · · ·MR. BAGHDADI:· Yes, Your Honor.

23· · · · · · ·THE COURT:· I don't have any particular

24· ·questions on five.

25· · · · · · ·One question, which was sparked by a comment

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·1· ·in Mr. Singleton's papers, is to look at CMO6, paragraph

·2· ·four.

·3· · · · · · ·And Mr. Singleton's comment on paragraph four

·4· ·was he's not sure what kind of a questionnaire this is

·5· ·and he's not sure if you're going to be asking him to

·6· ·present more information than otherwise would be

·7· ·normally presented in the context of a preference

·8· ·motion.· In other words, how much -- in part, how much

·9· ·of a burden is this, how relevant is this?

10· · · · · · ·What sort of questionnaire is this that's

11· ·being referred to in paragraph four?

12· · · · · · ·MR. SKIKOS:· I'll deal with that.

13· · · · · · ·First, with respect to the questionnaire

14· ·itself, we had a preference committee back in August.

15· ·Mr. Terry Singleton was on it.

16· · · · · · ·We presented the original questionnaire back

17· ·on August 14th.· The questionnaire that is proposed is

18· ·mirrored off of 36, and it was sent to all counsel,

19· ·including all Singleton attorneys, who receive all

20· ·counsel emails, on October 22nd.· On October 29th again,

21· ·so everybody has seen it, and I have the emails.

22· · · · · · ·However, the questionnaire itself, again, is

23· ·just a mirror of 36.· It is not substantively different

24· ·other than it hits a lot of the topics, including what

25· ·fires are involved, et cetera.

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·1· · · · · · ·I have a lot of other things to say, but that

·2· ·answers your question.

·3· · · · · · ·THE COURT:· What else did you want to say?

·4· · · · · · ·MR. SKIKOS:· Well, I think, first, it's

·5· ·regrettable that there's a potential change in judges,

·6· ·because we can build on what we have built on in other

·7· ·cases and in this case.

·8· · · · · · ·And in this case we have built a series of

·9· ·case management orders and a process that has been

10· ·successful in 20-something other JCCPs, which is the

11· ·plaintiff lawyers do things by collaboration and by

12· ·consent.

13· · · · · · ·We spent four months -- four months working

14· ·together with 50 law firms, trying to put together a

15· ·preference plan that can be protected from arguments

16· ·from the defense.

17· · · · · · ·I am very concerned that there is more going

18· ·on here than simply one preference motion for one

19· ·plaintiff.· Every -- in one week, I had 30 preference

20· ·cases sent to me under the criteria that was presented

21· ·in the preference motion on the Fowler case.

22· · · · · · ·And Your Honor and I dealt with this in

23· ·Reglan, where we had a mortality rate of 26 percent in a

24· ·very short period of time.

25· · · · · · ·In Gadolinium, which was a predecessor to you,

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·1· ·but you had one of the trial cases, the gadolinium

·2· ·mortality rate was unbelievable.· It was a hundred

·3· ·percent.

·4· · · · · · ·We as a plaintiff bar had to work together to

·5· ·deal with a horrible situation, which is a sick and

·6· ·dying population, a need to complete liability

·7· ·discovery -- and in this case a need to complete

·8· ·liability discovery across fires -- a need to make sure

·9· ·that the litigation is successful.

10· · · · · · ·And what's happening here is a little

11· ·nerve-racking.· When PG&E puts in its brief -- they

12· ·didn't hide it.· They put it in their brief.· They said

13· ·the Singleton group has insisted on pursuing this path

14· ·of inefficiency while offering to drop it entirely,

15· ·including all preference motions, if PG&E will agree to

16· ·mediate these plaintiff claims separate from everybody

17· ·else's claims.

18· · · · · · ·Whether that is true or false, a litigation

19· ·plan has to be based on the collaboration of all the

20· ·lawyers.· It has to be based on not a mediation plan for

21· ·your own clients, especially in a case like this, but a

22· ·litigation plan that is ultimately going to be

23· ·successful for all plaintiffs.

24· · · · · · ·Now, at the very start of this litigation -- I

25· ·see Mr. Terry Singleton here.· At the very start of this

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·1· ·litigation, I reached out to Mr. Terry Singleton and

·2· ·Mr. Tom Tosdale and started setting up sporadic calls to

·3· ·work with each other, to collaborate with each other, to

·4· ·come up with a game plan.

·5· · · · · · ·I am concerned and I'll say this on the record

·6· ·that the plan that has been put in place benefits PG&E,

·7· ·and I want to make sure that nothing that happens here

·8· ·prejudices the rights of the 3,000 people, my hometown,

·9· ·other leaders' hometowns, to the detriment to all

10· ·plaintiffs.

11· · · · · · ·And the fact that they put in the brief that

12· ·this litigation plan is conditioned upon some mediation

13· ·plan, well, here they -- we have spent the entire

14· ·hearing, two hours, dealing with plaintiff lawyers.

15· ·Why?· Why is this one case and other cases similarly

16· ·situated -- when we have one in our own law firm in

17· ·which the plaintiff was dying of cancer, she fled to our

18· ·house and lived with us until she died.

19· · · · · · ·Every single plaintiff, okay, if they have

20· ·people who are sick and dying, PG&E can settle those

21· ·individual cases, but don't make a litigation plan that

22· ·hurts the entire litigation or potentially hurts the

23· ·entire litigation based upon a mediation decision.

24· · · · · · ·So I say that only because it seems odd that

25· ·in 20-something JCCPs, this group of lawyers, Mr. Petri,

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·1· ·Mr. Robinson, Ms. Cabraser, all of these lawyers who

·2· ·have run all these JCCPs, have done this collaboratively

·3· ·and without conflict over CCP 36 because we understand

·4· ·the importance of that statute and preserving that

·5· ·statute against the DRI and against the Wall Street

·6· ·interests, who want to get rid of it, because that's

·7· ·what's really going so, we have to work together and

·8· ·collaboratively.

·9· · · · · · ·That's all we're asking of Mr. Singleton.

10· ·That's all we are asking of his group, whatever is left

11· ·of it.· We are asking everybody to work collaboratively

12· ·to make sure that the plaintiffs' interests in this

13· ·state are preserved.

14· · · · · · ·And we can do that but we have to do that as a

15· ·team, so that's my point.

16· · · · · · ·THE COURT:· Thank you, sir.

17· · · · · · ·MR. SINGLETON:· Your Honor, if I may --

18· · · · · · ·THE COURT:· Very briefly.· This will be the

19· ·last -- we're going to conclude our conference --

20· · · · · · ·MR. SINGLETON:· Understood.· I wasn't going to

21· ·address it, but since Mr. Skikos brought it up, I do

22· ·want to say that is categorically false.

23· · · · · · ·What happened -- and I wasn't going to say

24· ·anything, but since PG&E has put it in the brief, what

25· ·happened was this:· I suggested that we attempt to

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·1· ·mediate Ms. Fowler's case as opposed to filing the

·2· ·motion.· PG&E decided they didn't want to do that.

·3· ·That's absolutely fine.· That's their right.

·4· · · · · · ·But the assertion that we agreed not to file

·5· ·any preference motions, that we agreed to drop

·6· ·everything in exchange for a mediation is simply false.

·7· ·I don't know where it comes from.

·8· · · · · · ·THE COURT:· Thank you.

·9· · · · · · ·I'm going to ask whoever has the original

10· ·copies of CMO5 and six to leave them here before you

11· ·leave.

12· · · · · · ·My plan now is to go off the record and pick a

13· ·date for the next CMC, but before I do that, is there

14· ·anything else anybody wants to raise?

15· · · · · · · · · · · (No response.)

16· · · · · · ·THE COURT:· Off the record.

17· · · · · · · (Discussion off the record.)

18· · · · · · · ·(Recess taken at 4:04 p.m.)

19· · · · · · ·THE COURT:· The next CMC has already been set

20· ·for January 2019 and the issues are submitted.

21· · · · · · ·Thank you very much.

22· (Whereupon, proceedings adjourned at 4:04 p.m.

23· · · · · · · · · · · · · · )

24

25

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·1· ·State of California· · · · · · · · )

· · · · · · · · · · · · · · · · · · · · )

·2· ·County of San Francisco· · · · · · )

·3

·4

·5· · · · I, Mary Ann Scanlan, California Certified Shorthand

·6· ·Reporter No. 8875, do hereby certify:

·7· · · · That I was present at the time of the above

·8· ·proceedings;

·9· · · · That I took down in machine shorthand notes all

10· ·proceedings had and testimony given;

11· · · · That I thereafter transcribed said shorthand notes

12· ·with the aid of a computer;

13· · · · That the above and foregoing is a full, true, and

14· ·correct transcription of said shorthand notes, and a

15· ·full, true and correct transcript of all proceedings had

16· ·and testimony taken;

17· · · · That I am not a party to the action or related to a

18· ·party or counsel;

19· · · · That I have no financial or other interest in the

20· ·outcome of the action.

21

22· ·Dated:· January 9, 2019

23

24· · · · · · · · · · ·_____________________________________

· · · · · · · · · · · ·MARY ANN SCANLAN CSR No. 8875

25

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