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JOHN L. BURRIS, STATE BAR NO. 69888 Law Offices of John L. Burris Airport Corporate Centre 7677 Oakport Road, Suite 1120 Oakland, California 94621 Telephone: 510.839.5200 Facsimile: 510.839.3882

JAMES B. CHANIN, STATE BAR NO. 76043 JULIE M. HOUK, STATE BAR NO. 114968 Law Offices of James B. Chanin 3050 Shattuck Avenue Berkeley, California 94705 Telephone: 510.848.4752 Facsimile: 510.848.5819 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DELPHINE ALLEN; et al; Plaintiffs, MASTER CASE NO. C-00-4599 TEH PLAINTIFFS’ NOTICE OF AND MOTION TO COMPEL DEPOSITION OF OAKLAND MAYOR, JEAN QUAN, ON SHORTENED TIME; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF PLAINTIFFS’ COUNSEL IN SUPPORT THEREOF Motion to Compel Hearing Date: 9.10.12 Time: 10:00 a.m. Courtroom: 2, 17th Floor The Hon. Magistrate Judge Nathanael M. Cousins Receiver Motion Hearing Date: 12.13.12 Time: 10:00 a.m.

vs.

CITY OF OAKLAND, et al., Defendants.

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Allen v. City of Oakland, Case No. C00-4599 TEH Plaintiffs’ Notice of and Mot. to Compel Depo. of Mayor Quan; Memo of Pts. And Auth.

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I. PLAINTIFFS’ NOTICE OF AND MOTION TO COMPEL DEPOSITION OF OAKLAND MAYOR, JEAN QUAN, AND FOR SANCTIONS On September 10, 2012, at 10:00 a.m., or as soon thereafter as may be heard pursuant to the Court’s Order Shortening Time (Ex. 1), before the Honorable Magistrate Judge Nathanael M. Cousins, at the United States District Court for the Northern District of California, Courtroom A, 15th Floor, 450 Golden Gate Avenue, San Francisco, California, Plaintiffs will move the Court for an Order compelling Oakland Mayor, Jean Quan, to appear for deposition on September 12, 13 or 15, 2012, from 10:00 a.m. to 5:00 p.m. and, alternatively, if the Mayor is only available to appear on September 25, 2012, for an Order compelling her appearance at deposition on that date from 10:00 a.m. to 5:00 p.m. at the Oakland City Hall. Said motion shall be based on this Notice of and Motion; the Memorandum of Points and Authorities Set forth below, the Declaration of Plaintiffs’ counsel, F.R.C.P. 30 and 37, and other applicable legal authorities, the Court file herein and any arguments and/or evidence presented at the

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time of the hearing. II. MEMORANDUM OF POINT AND AUTHORITIES A. STATEMENT OF FACTS AND DECLARATION OF PLAINTIFFS’ COUNSEL I, James B. Chanin, declare: 1. I am an attorney licensed to practice law in the State of California, am duly admitted to practice in this Court and am one of the attorneys representing the Plaintiffs in this action. I have personal knowledge of the matters stated herein and would testify to the same if called to do so in a Court of law. 2. Plaintiffs are moving the Court for an Order to compel the deposition of Mayor Quan on an expedited basis due to the fact that Mayor Quan refused to appear for her duly noticed deposition on August 30, 2012. Plaintiffs are moving to compel Mayor Quan’s appearance at deposition on

Allen v. City of Oakland, Case No. C00-4599 TEH Plaintiffs’ Notice of and Mot. to Compel Depo. of Mayor Quan; Memo of Pts. And Auth.

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September 12, 13 or 15, 2012 from 10:00 a.m. to 5:00 p.m. In the alternative, if the only date the Mayor is available is September 25, 2012, from 10:00 a.m. to 5:00 p.m., Plaintiffs are moving the Court for an Order setting the deposition for that date, enforceable by contempt, including imposition of issue sanctions, if the Mayor fails to appear at that time. A copy of an Order Shortening Time for

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 busy schedule, Plaintiffs’ counsel diligently attempted to reach an agreement with the City Attorney 25 26 27 28
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this Motion will be attached and incorporated herein by reference as Exhibit 1 to this Motion if said Order is granted by the Court when the Motion is efiled. 3. Mayor Quan is the chief elective officer of the City of Oakland and is responsible for providing leadership, taking issues to the people and marshaling public interest in, and support for, municipal activity. (See, Ex. 9, City of Oakland City Charter, Section 305, a true and correct copy of which is attached and incorporated herein by reference). Defendant City of Oakland previously represented to the Court that the Mayor is ultimately responsible for ensuring that the City of Oakland comes into compliance with the tasks mandated by the Negotiated Settlement Agreement (NSA). (See, Ex. 2, City’s Response to Court Order of April 13, 2011, 1:24-2:7, a true and correct copy of which is attached and incorporated herein by reference). Given these facts, Mayor’s Quan’s deposition testimony about the City’s chronic failure to come into compliance with critical tasks mandated by the NSA is likely to be highly relevant to the issue of whether the Court should grant Plaintiffs’ motion for a receivership. That motion is due to be heard on December 13, 2012, and Plaintiffs’ moving papers are due to be filed on October 4, 2012. 4. Given the importance of the Mayor’s deposition testimony to Plaintiffs’ receivership motion, and out of respect for the fact that the Mayor has many other duties to attend to and has a

on a date for the Mayor’s deposition that was convenient to her and which respected the fact that the Mayor has many other duties and responsibilities to attend to. These efforts to reach an agreement on

Allen v. City of Oakland, Case No. C00-4599 TEH Plaintiffs’ Notice of and Mot. to Compel Depo. of Mayor Quan; Memo of Pts. And Auth.

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a date for Mayor Quan’s deposition with the City Attorney’s office spanned approximately two months, from May to July 2012. 5. Finally, on July 27, 2012, Defendants’ counsel, Randolph Hall, sent Plaintiffs’ counsel an email setting the Mayor’s deposition for August 30, 2012, from 10:00 a.m. to 5:00 p.m. and

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Mayor Quan would not be appearing. Mr. Hall also told Plaintiffs’ counsel that the Mayor wished to 25 26 27 28 continue the deposition to September 25 or 27, 2012. 10. Plaintiffs’ counsel wrote a letter to Mr. Hall on August 28, 2012 to meet and confer with him about this issue in an effort to reach an informal resolution. In that letter, Plaintiffs’ informed
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represented that this was a “firm” date and time for the deposition. A true and correct copy of said email is attached and incorporated herein by reference as Exhibit 3. 6. Although Plaintiffs’ counsel would have preferred to have taken Mayor Quan’s deposition earlier in June or July 2012, to ensure that they had sufficient time to prepare their moving papers for the upcoming receivership motion, Plaintiffs’ counsel agreed to the August 30, 2012 date proposed by the Mayor’s counsel out of respect for the Mayor’s busy schedule and other obligations. 7. Based on Mr. Hall’s email, Plaintiffs’ counsel formally noticed the Mayor’s deposition for August 30, 2012, from 10:00 a.m. to 5:00 p.m. A true and accurate copy said notice is attached and incorporated herein by reference as Exhibit 4. Mayor Quan never served any objection to this notice. 8. In anticipation of the deposition on August 30, 2012, Plaintiffs’ counsel and their staff spent a considerable amount of time preparing for Mayor Quan’s deposition over the weekend of August 25 and 26, 2012 and well as on August 27 and 28, 2012. 9. During the late afternoon of August 28, 2012, less than 48 hours before Mayor Quan’s scheduled deposition, Randolph Hall, counsel for the City of Oakland and Mayor Quan, informed Plaintiffs’ counsel for the first time that Mayor Quan would not appear for her deposition on August 30, 2012. Mr. Hall did not provide Plaintiffs’ counsel with any specific reason at that time why

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Mr. Hall that he could not agree to postpone the Mayor’s deposition to September 25 or 27, 2012 because of the prejudice it would cause to Plaintiffs in preparing their moving papers for the receiver motion which are due to be filed on October 4, 2012. Plaintiffs’ counsel did offer to agree to continue the Mayor’s deposition to the following week as an accommodation to the Mayor and her

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 would agree to accommodate the Mayor’s need to appear at the aforesaid City Council meeting by 25 26 27 28 commencing her deposition early in the morning on August 30, 2012, allow for a break so that the Mayor could attend the City Council session, and then resume the deposition following the completion of the City Council session. A true copy of the email from Plaintiffs’ counsel sent on
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schedule. A true and correct copy of the August 28, 2012 letter to Mr. Hall is attached hereto as Exhibit 10. 11. Subsequently, on August 29, 2012, Mr. Hall sent Plaintiffs’ counsel the email that is attached and incorporated herein by reference as Exhibit “5,” claiming that the Mayor could not attend her deposition as scheduled on August 30, 2012, because she had to attend a special session of the City Council that day. Mr. Hall also stated that the Mayor could not attend a deposition session prior to September 25, 2012, because she wanted to attend the Democratic National Convention next week, even though the convention ends on September 6, 2012 and no other reason was provided why the Mayor could not be deposed prior to September 25, 2012. 12. Following the receipt of Mr. Hall’s email (Exhibit “5”), Plaintiffs’ counsel reviewed the City Council agenda for August 30, 2012. A copy of that agenda is attached and incorporated herein by reference as Exhibit 6. The agenda stated that the City Council was conducting a “special session” beginning at 12:15 p.m. on August 30, 2012. There was one item on the agenda in addition to a closed session. Id. 13. Since it did not appear to Plaintiffs’ counsel that the August 30, 2012, special session of the City Council was likely to take all day, Plaintiffs’ counsel informed Mr. Hall via email that he

Allen v. City of Oakland, Case No. C00-4599 TEH Plaintiffs’ Notice of and Mot. to Compel Depo. of Mayor Quan; Memo of Pts. And Auth.

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August 29, 2012, is attached and incorporated herein by reference as Exhibit 7. Also included in Exhibit 7 is Mr. Hall’s response in which he nevertheless declined to produce Mayor Quan at all on August 30, 2012 for her deposition. 14. Plaintiffs’ counsel also indicated in the email to Mr. Hall that if the entirety of the

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 17. On August 30, 2012, Plaintiffs’ counsel left a phone message and sent an email to Mr. 25 26 27 28
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deposition could not be completed on August 30, 2012, Plaintiffs’ counsel would be amenable to completing it on another date in September 2012, convenient to the Mayor’s schedule, since Plaintiffs’ counsel anticipated that he would be able to cover a significant amount of the core information needed for the receivership motion before the City Council special session on the morning of August 30, 2012, and after the conclusion of the special session that day. Id. 15. Mr. Hall reiterated to Plaintiffs’ counsel in person when he was at the City Hall later in the day on August 29, 2012, that Mayor Quan would not appear for her deposition at any time on August 30, 2012, before and/or after, the special session of the City Council. 16. On August 30, 2012, Plaintiffs’ counsel learned that the duration of the City Council’s special session, both the closed and open parts of it, lasted a total of 44 minutes, from noon until 12:44 p.m. Given this fact, Plaintiffs’ counsel was left to conclude that the special session of the City Council was not a legitimate reason for the Mayor to cancel the entirety of her deposition on August 30, 2012. This is particularly true where Plaintiffs’ counsel offered to accommodate the Mayor’s attendance at the City Council session by adjourning and resuming the deposition once her duties were completed there and counsel for the Mayor had previously represented this to be a “firm” date for the deposition.

Hall, asking whether he would agree to an order shortening for Plaintiffs to bring the instant motion. A copy of this email is attached and incorporated herein by reference as Exhibit 8.

Allen v. City of Oakland, Case No. C00-4599 TEH Plaintiffs’ Notice of and Mot. to Compel Depo. of Mayor Quan; Memo of Pts. And Auth.

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18. On August 30, Plaintiffs’ counsel also proposed taking Mayor Quan’s deposition on September 12, 13 or 15, during the early mornings, evenings or on weekends if that would accommodate her other commitments. In the event that Mr. Hall and the Mayor continued to insist that the earliest date the Mayor could appear for deposition was on September 25, 2012, Plaintiffs’

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 that the Mayor would not appear for deposition before September 25, 2012. Plaintiffs’ counsel 25 26 27 28
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counsel also proposed that he and the Mayor enter into a stipulation so that the further deposition would become a Court Order enforceable by contempt and/or with the possibility of the imposition of issue sanctions if the Mayor failed to appear a second time for her deposition. Plaintiffs’ counsel believed that this proposal would reasonably accommodate the Mayor’s desire to have the deposition proceed on September 25, 2012, while giving the Plaintiffs some additional insurance that the Mayor would appear and proceed with her deposition on that date. Plaintiffs’ counsel made this proposal even though Plaintiffs would still suffer prejudice because they would only have six court days to integrate the Mayor’s testimony into their receivership motion papers that are due to be filed on October 4, 2012. A true and accurate copy of Plaintiffs’ counsel’s August 30, 2012 email containing these proposals is attached and incorporated herein by reference as Exhibit 11. 19. Mr. Hall responded via email, a copy of which is attached as Exhibit 12. Also attached to as Exhibit 12 is the further response by Plaintiffs’ counsel and a further response by Mr. Hall on August 30, 2012. As shown by these emails, Mr. Hall declined to enter into a stipulation and order for Mayor Quan’s deposition on September 25, 2012, leaving open the possibility that she might not appear even then. Mr. Hall also stated that he would be unavailable to appear for a hearing on this motion during the week of September 10, 2012, because he would be out of town. He also reiterated

responded by informing Mr. Hall that he would ask the Court to set the hearing on the motion on shortened time on September 7, 2012 and, if that date was not available, would ask the Court to set it

Allen v. City of Oakland, Case No. C00-4599 TEH Plaintiffs’ Notice of and Mot. to Compel Depo. of Mayor Quan; Memo of Pts. And Auth.

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on September 10, 2012, and request that Mr. Hall appear via telephone or send another attorney from his office to the hearing. (Ex. 12). 20. As shown above, Plaintiffs’ counsel have diligently attempted to accommodate the Mayor’s schedule and have respected the fact that she has many duties and obligations to attend to

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other than this case. However, Plaintiffs are also on a Court mandated schedule to file their moving papers on their receivership motion by October 4, 2012, and simply will not have sufficient time to integrate the Mayor’s testimony into their moving papers and/or to have their experts weigh in on it before their moving papers are due if the deposition is not scheduled earlier than the Mayor is now requesting. Even if Plaintiffs were agree to postpone the deposition until September 25, 2012, counsel for the City of Oakland has refused to enter into a formal stipulation and order continuing the deposition to that date, and has instead, left open the very real possibility that the Mayor might not appear even then. 21. Reluctantly, Plaintiffs’ counsel believe that they have no other choice than to request the assistance of the Court in resolving this issue. Therefore, Plaintiffs respectfully ask the Court to Compel Mayor Quan’s deposition on September 12, 13 or 15, 2012, from 10:00 a.m. to 5:00 p.m., or, alternatively, on September 25, 2012, if that is the only date when the Mayor is available to appear for her deposition. Plaintiffs also respectfully request that the Court Order that the Mayor appear for deposition, with said Order enforceable by contempt, including the imposition of issue sanctions, in the event that the Mayor fails to appear for her deposition a second time. 22. I declare under penalty of perjury that the foregoing is true and correct based on my personal knowledge. Executed this 5th day of September 2012, at Berkeley, California.

__________/S/_____________________ James B. Chanin Attorney for Plaintiffs

Allen v. City of Oakland, Case No. C00-4599 TEH Plaintiffs’ Notice of and Mot. to Compel Depo. of Mayor Quan; Memo of Pts. And Auth.

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B. APPLICABLE LAW 1. Mayor Quan Should Be Compelled to Attend her Deposition on a Date Certain Under Penalty of Contempt of Court and Issue Sanctions to Ensure that Plaintiffs Have Discovery Necessary to Support their Receivership Motion the is Due to Be Filed on October 4, 2012 Defendant City of Oakland, a municipal corporation, is a named party to this action. Under Rule 30(b)(1), it is well recognized that a notice of taking deposition compels a party to produce its officers, directors and managing agents named in a deposition notice for deposition. See, e.g., Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 628, fn.1 (C.D. Cal. 2005)(citing, Schwarzer, Tashima & Wagstaffe, California Practice Guide: Fed. Civil Procedure Before Trial, §§ 11:1419, 11:2226 (2005 rev.); DR Sys. v. Eastman Kodak Co., 2009 U.S. Dist. LEXIS 83755, fn.2 (S.D. Cal. 2009); JSC Foreign Economic Ass'n Technostroyexport v. Int'l Dev. & Trade Servs., Inc., 220 F.R.D. 235, 237 (S.D.N.Y. 2004). If a party, including a party's officer, director, or managing agent, see Fed.R.Civ.P.

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37(d)(1)(A)(i), fails to appear for a deposition "after being served with proper notice", id,, the Court may, upon motion, impose sanctions. Those sanctions can include those sanctions listed in Fed.R.Civ.P. 37(b)(2) as well as "further just orders." As shown above, Mayor Quan’s refusal to attend her deposition as duly noticed on August 30, 2012, was inexcusable and not substantially justified, particularly in light of the fact that Plaintiffs’ counsel offered to accommodate her alleged need to appear at a special session of the City Council by starting the deposition that day in the early morning, adjourning it while the Mayor appeared for the City Council meeting and resuming it after the special session was completed. Mayor Quan’s counsel has also failed to provide any justification why she cannot make herself available for deposition at any time prior to September 25, 2012.

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Even if Plaintiffs agreed to continue the Mayor’s deposition to September 25, 2012, her counsel, Mr. Hall, has refused to enter into a formal stipulation and order continuing the deposition to that date, leaving open the very real possibility that the Mayor may not appear for her deposition even at that late date.

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Therefore, Plaintiffs respectfully move the Court for an Order pursuant to F.R.C.P. 30 and 37, compelling Mayor Quan’s deposition on September 12, 13 or 15, 2012, from 10:00 a.m. to 5:00 p.m., or alternatively, on September 25, 2012, from 10:00 a.m. to 5:00 p.m. if that is the only date that the Mayor has available for her deposition. Said deposition should be ordered to take place at the City of Oakland City Hall under penalty of contempt, including imposition of issue sanctions, if the Mayor fails to appear at the deposition. C. CONCLUSION Based on the foregoing, Plaintiffs respectfully move the Court for an Order pursuant to F.R.C.P. 30 and 37, compelling Mayor Quan’s deposition on September 12, 13 or 15, 2012, from 10:00 a.m. to 5:00 p.m., or alternatively, on September 25, 2012, from 10:00 a.m. to 5:00 p.m. if that is the only date that the Mayor has available for her deposition. Said deposition should be ordered to take place at the City of Oakland City Hall under penalty of contempt, including issue sanctions, if the Mayor fails to appear at the deposition.

Dated: September 5, 2012

__________/S/__________________________ James B. Chanin Attorney for Plaintiffs

Allen v. City of Oakland, Case No. C00-4599 TEH Plaintiffs’ Notice of and Mot. to Compel Depo. of Mayor Quan; Memo of Pts. And Auth.

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