KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111

Case 2) 0-cv-09198-JVS -RNB Document 318-1 Filed 08/29/12 Page 1of4 Page ID #:14511

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP CHARLES N. FREIBERG (SBN 70890)

BRIAN P. BROSNAHAN (SBN 112894)

JACOB N. FOSTER (SBN 250785) 101 California Street, Suite 2300 San Francisco, California 94111 Telephone: (415) 421-6140 Facsimile: (415) 398-5030

LEVINE & MILLER

HARVEY R. LEVINE (SBN 61879) CRAIG A. MILLER (SBN 116030) LEVINE & MILLER

550 West C Street, Suite 1810

San Diego, CA 92101-8596 Telephone: (619) 231-9449 Facsimile: (619) 231-8638

Attorneys for Plaintiffs

JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves

and all others similarly situated

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated,

Plaintiffs, V. LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation,

Defendant.

CLASS ACTION

CASE NO.: CV 10-9198 JVS (RNBx) Formerly Case No.: 3:10-cv -04852 JSW

from Northern District of California DECLARATION OF BRIAN P. BROSNAHAN IN OPPOSITION TO EX PARTE APPLICATION

Judge James V. Selna Courtroom: 10C

DECLARATION OF BRIAN P. BROSNAHAN IN OPPOSITION TO EX PARTE APPLICATION

ase No. CV 10-9198 JVS (RNBx)

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111

Case

:10-cv-09198-JVS -RNB Document 318-1 Filed 08/29/12 Page2of4 Page ID #:14512

I, Brian P. Brosnahan, declare as follows:

1. I am an attorney authorized to practice in the courts of California and in the United States District Court for the Central District of California. Iam a partner of Kasowitz, Benson, Torres & Friedman, LLP, counsel for Plaintiffs in these proceedings. I have personal knowledge of the facts stated herein and if required could and would testify under oath thereto.

= On July 3, 2012, counsel for LSW took the deposition of Dr. Patrick L. Brockett. During a break in the deposition, Mr. Joel Fleming, counsel for LSW, asked whether pursuant to L.R. 7-3, Plaintiffs would stipulate to a motion striking Dr. Brockett’s declaration or to the withdrawal of the declaration. Mr. Fleming did not discuss the substance of LSW’s planned motion. My colleague, Jacob Foster, informed Mr. Fleming that Plaintiffs would not withdraw Dr. Brockett’s declaration and that LSW was free to file a motion. Ten days later, LSW filed its motion to strike Dr. Brockett’s declaration.

3. On August 21, 2012, I sent an email to Jonathan Shapiro inquiring whether LSW would stipulate to an August 31, 2012 due date for the evidentiary objections by both sides. This request had nothing to do with any concern about page limits since Plaintiffs’ objections are not subject to any page limits. Mr. Shapiro rejected this proposal and provided LSW’s interpretation of the Scheduling Order. On August 23, 2012, I responded to Mr. Shapiro by thanking him for providing LSW’s interpretation of the Order. Since LSW refused to agree on any due date for objections, Plaintiffs filed their objections with their reply papers on August 24, 2012. A true and correct copy of an email chain including all of the foregoing emails is attached hereto as Exhibit A.

4. On August 28, 2012, Mr. Fleming telephoned Mr. Foster and myself, and indicated that LSW intended to file an ex parte motion to strike Plaintiffs’ objections to evidence submitted with LSW’s opposition to class certification.

When I inquired as to the basis of LSW’s ex parte motion, Mr. Fleming stated that

DECLARATION OF BRIAN P. BROSNAHAN IN OPPOSITION TO EX PARTE APPLICATION Case No. CV 10-9198 JVS (RNBx) 1

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111

Case

—

Nn NN BB W WN

:10-cv-09198-JVS -RNB Document 318-1 Filed 08/29/12 Page 3of4 Page ID #:14513

the objections to evidence were required to be filed in the form of a motion to strike, and Plaintiffs had not met and conferred regarding a motion to strike. When I inquired whether there was any case law or other authority supporting LSW’s argument that objections to evidence were required to be filed in the form of a motion to strike, Mr. Fleming stated that the authority was contained in LSW’s ex parte motion, which would be filed shortly. On reviewing LSW’s ex parte application (Dkt. 311), I noted that it does not contain any applicable case law (or other authority) for the proposition that objections to evidence are required to be filed in the form of a motion to strike.

a On August 28, 2012, at 12:41 p.m., approximately one hour after Mr. Fleming’s phone call, I sent an email to counsel for LSW, which stated that ““[{h]aving consulted the pertinent rules and Judge Selna’s General Order, we do not believe that the relief you describe can be obtained via an ex parte application. We would be happy to discuss a stipulation for an order shortening time so that you can file a motion to strike to be heard on September 10, 2012.” Attached hereto as Exhibit B is a true and correct copy of this email.

6. Attached hereto as Exhibit C is an email from James Lux to Brian Brosnahan, dated August 18, 2012, at 2:04 p.m. Mr. Lux responded to my earlier email (Exhibit B) by stating, “[w]e don’t see the rule you are referring to ... Is there some rule we’re missing?”

re Attached hereto as Exhibit D is a true and correct copy of an email from Brian Brosnahan to James Lux, dated August 18, 2012, at 2:17 p.m. I responded to Mr. Lux’s earlier email (Exhibit C) by stating:

Nothing in the Local Rules, Judge Selna’s rules, or his order regarding

page limits precludes the filing of objections to evidence or includes objections to evidence within any page limits applicable to briefs.

Judge Selna’s Initial Order Following Filing of Complaint Assigned to Judge Selna states (in Part D) that “Ex Parte applications are solely

DECLARATION OF BRIAN P. BROSNAHAN IN OPPOSITION TO EX PARTE APPLICATION Case No. CV 10-9198 JVS (RNBx) 2

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111

Case

:10-cv-09198-JVS -RNB Document 318-1 Filed 08/29/12 Page4of4 Page ID #:14514

for extraordinary relief and should be used with discretion.” There is nothing extraordinary about your motion to strike, and we see no reason why it needs to be heard before September 10. Please advise us why you believe your motion needs to be resolved on an ex parte basis.

8. Attached hereto as Exhibit E is a true and correct copy of an email from James Lux to Brian Brosnahan, dated August 18, 2012, at 3:08 p.m. Mr. Lux responded to my earlier email (Exhibit D) by stating, “[i]t certainly seems extraordinary for Plaintiffs to have unilaterally submitted more than eight times the allowed number of pages ... an ex parte application is appropriate, and we will file this evening as we described.”

I declare under penalty of perjury that the foregoing is true and correct and

that this declaration was executed this 29th day of August, 2012 at San Francisco,

California.

KASOWITZ, BENSON, TORRES & FRIEDMAN LLP

By: /s/ Brian P. Brosnahan Brian P. Brosnahan

DECLARATION OF BRIAN P. BROSNAHAN IN OPPOSITION TO EX PARTE APPLICATION Case No. CV 10-9198 JVS (RNBx) 3