Electronically FILED by Superior Court of California, County of Los Angeles on 02/22/2019 08:05 AM Sherri R.

Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk

DAVIDA BROOK (275370)

1 dbrook@susmangodfrey.com
SUSMAN GODFREY L.L.P.
2 1900 Avenue of the Stars, Suite 1400
Los Angeles, CA 90067-6029
3 Telephone: (310) 789-3100
Facsimile: (310) 789-3150
4
WILLIAM CHRISTOPHER CARMODY (Pro Hac Vice)
5 bcarmody@susmangodfrey.com
STEPHEN SHACKELFORD, JR. (Pro Hac Vice)
6 sshackelford@susmangodfrey.com
MARK MUSICO (Pro Hac Vice)
7 mmusico@susmangodfrey.com
SUSMAN GODFREY L.L.P.
8 1301 Avenue of the Americas, 32nd Floor
New York, NY 10019-6023
9 Telephone: (212) 336-8330
Facsimile: (212) 336-8340
10
RACHEL S. BLACK (Pro Hac Vice)
11 rblack@susmangodfrey.com
SUSMAN GODFREY L.L.P.
12 1201 Third Avenue, Suite 3800
Seattle, WA 98101-3000
13 Telephone: (206) 516-3880
Facsimile: (206) 516-3883
14
Attorneys for Defendant Louis Bacon
15

16 SUPERIOR COURT OF THE STATE OF CALIFORNIA

17 COUNTY OF LOS ANGELES
18
BIANCA MCKINNEY, an individual, Case No. BC 624474
19

20 Petitioner, [Assigned for All Purposes to the

Hon. Robert B. Broadbelt, Dept 53]
21
v. DEFENDANT LOUIS BACON’S
22 OPPOSITION TO NON-PARTY
LOUIS BACON, et al., LAVELY & SINGER, P.C.’S EX PARTE
23 APPLICATION TO SPECIALLY SET
Defendants. FOR HEARING ITS MOTION FOR
PROTECTIVE ORDER AND MOTION
24 TO FILE UNDER SEAL
25 DATE: February 22, 2019
TIME: 8:30 a.m.
26 DEPT: 53
27

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OPPOSITION TO NON-PARTY LAVELY & SINGER, P.C.’S EX PARTE APPLICATION
 1 The Court should deny non-party Lavely & Singer, P.C.’s (“L&S”) ex parte application
2 (“Application”) to specially set for hearing its motion for protective order and motion to file
3 under seal. There is no good cause, let alone urgent cause, for granting this meritless Application.
4 The Application is based on a complete falsehood, and improperly seeks to circumvent the
5 jurisdiction of the federal court before whom L&S has pursued concurrent relief. The
6 Application for putative “emergency” relief also comes 49 days after it could have been brought,
7 and should be denied as hopelessly late.
8 L&S’s singular basis for seeking emergency relief is its misrepresentation that—despite
9 L&S’s claim of privilege—Defendant and his counsel have continued to make use of an unsigned
10 Indemnification Agreement produced to Defendant by a reporter as part of a 1782 Action initiated
11 in the United States District Court, District of Colorado (the “Document”). [Application at 3;
12 Declaration of Todd Eagan (“Eagan Decl.”) ¶7; Declaration of Stephen Shackelford
13 (“Shackelford Decl.”) ¶¶1-6.] Not so. The uncontestable facts are that as soon as Defendant
14 and his counsel were advised of the privilege claim, they: (1) sequestered the Document; (2)
15 brought the dispute to the attention of the United States District Court overseeing the action in
16 which it was produced; and (3) refrained from using the Document for any purpose other than to
17 respond to briefs addressing the disputed nature of the Document—briefs Defendant filed under
18 seal. [Declaration of Stephen Shackelford (“Shackelford Decl.”) ¶¶11-14.] They took these
19 protective measures out of an abundance of caution even though the document is patently not
20 privileged.
21 In light of these uncontestable facts, it is no surprise that L&S does not, and cannot, point
22 to a single instance in which Defendant or his counsel has improperly used the Document.
23 Because there has been no misuse of the Document, there is no good cause for granting the
24 Application.
25 The Application is not supported by good cause. There is no good cause for any—let
26 alone for immediate—relief as Defendant has not misused the Document. [See Cal. R. Ct.
27 3.1202(c) (“An applicant must make an affirmative factual showing in a declaration containing
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OPPOSITION TO NON-PARTY LAVELY & SINGER, P.C.’S EX PARTE APPLICATION
 1 competent testimony based on personal knowledge of irreparable harm, immediate danger, or any
2 other statutory basis for granting relief ex parte.”); Shackelford Decl. ¶¶11-14.] L&S’s
3 unsubstantiated allegations aside, the Application does not, and could not, cite to any actual
4 instance where Defendant or his counsel has improperly used the Document. The Application
5 does refer generally to a “Motion to Dismiss set for hearing prior to May 7, 2019.” [Application
6 at 3; Eagan Decl. ¶7.] Assuming L&S is referring to Defendant’s pending motion for terminating
7 sanctions, that motion, and exhibits attached thereto, was filed before L&S asserted that the
8 document was privileged, so there can be no claim that filing the Document with that motion was
9 improper. [Shackelford Decl. ¶¶7-11.]
10 In sum, L&S’s singular basis for seeking this ex parte relief is belied by the record in this
11 case. Accordingly, there is no good cause for granting the Application.
12 Any urgency is of L&S’s own creation. While L&S’s application must fail as there is
13 no good cause, it is also the case that any claimed urgency if of L&S’s own creation. As
14 background, L&S was made aware that Defendant was in possession of the Document on January
15 4, 2019. [Eagan Decl. ¶2.] L&S, however, did not bring any motion for protective order until
16 more than a month later. [Eagan Decl. ¶6 (attesting to February 6, 2019 motion).] It then sat on
17 its hands for yet another two weeks before noticing this ex parte. In total, this ex parte is being
18 heard 49 days after L&S received Defendant’s subpoena attaching the Document—with no
19 explanation for the delay.
20 It is clear from these actions that L&S is not actually concerned about avoiding an
21 irreparable harm. More likely, having participated in a hearing before the federal court where the
22 Document was produced, and gotten a preview that the federal court is likely to rule that the
23 Document is not privileged, L&S is attempting to manufacture a reason for this Court to jump in
24 front of the federal court where the Document was actually produced and which will shortly rule
25 on L&S’s fully briefed assertion that the document is privileged. The Court should not reward
26 this gamesmanship.
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OPPOSITION TO NON-PARTY LAVELY & SINGER, P.C.’S EX PARTE APPLICATION
 1 Moving the motion would result in prejudice to Defendant. The relief sought—
2 moving the hearing on L&S’s motions to an unspecified date in March 2019—should be denied
3 as yet another attempt to delay the Court’s decision on Defendant’s motion for summary
4 judgment (which has been continued three times already). Defendant’s motion for summary
5 judgment does not rely on the Document as any basis for granting summary judgment.
6 Moreover, as illustrated by the Court’s tentative opinion granting Defendant’s motion, the
7 Document has nothing to do with Plaintiff’s failure to create a genuine dispute of material fact
8 regarding whether Defendant was involved with the alleged graffiti incident in December 2015.
9 [See Tentative Order Re: Motion for Summary Judgment or, in the Alternative, Summary
10 Adjudication (Jan. 28, 2019).] That Defendant cited the Document in one paragraph of his reply
11 brief in support of that motion, and therefore attached it as an exhibit1—which the Court can
12 ignore (and did not mention) when tentatively deciding the motion—does not merit again
13 continuing the hearing on the summary judgment motion. To be clear, Defendant does not rely
14 on the Document in support of his motion for summary judgment. Therefore, there is no need to
15 advance the hearing on L&S’s motion for protective order.
16 In sum, there is no good cause for granting L&S’s Application which should therefore be
17 denied.
18
Dated: February 22, 2019 WILLIAM CHRISTOPHER CARMODY
19 STEPHEN SHACKELFORD, JR.
DAVIDA BROOK
20 MARK MUSICO
RACHEL S. BLACK
21 SUSMAN GODFREY L.L.P.
22

23 By:
24 Stephen Shackelford, Jr.
Attorney for Defendant Louis Bacon
25

26
1
Defendant relied on the Document only after bringing it to the attention of Plaintiff’s counsel—
27 who did not make a privilege objection—and before any assertion of privilege by L&S or
otherwise. [Shackelford Decl. ¶¶7-11.]
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OPPOSITION TO NON-PARTY LAVELY & SINGER, P.C.’S EX PARTE APPLICATION
 1 PROOF OF SERVICE
2 I, the undersigned, declare:
3 I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 1900 Avenue of the Stars, Suite 1400,
4 Los Angeles, California 90067-6029.
5
On February 22, 2019, I served the foregoing document(s) described as follows:
6
DEFENDANT LOUIS BACON’S OPPOSITION TO NON-PARTY LAVELY & SINGER,
7 P.C.’S EX PARTE APPLICATION TO SPECIALLY SET FOR HEARING ITS MOTION
FOR PROTECTIVE ORDER AND MOTION TO FILE UNDER SEAL
8
on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes
9 addressed as stated on the attached service list, as follows:
10
BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing
11 correspondence for mailing. Under that practice, it would be deposited with the U.S.
Postal Service on that same day with postage thereon fully prepaid at Los Angeles,
12 California in the ordinary course of business. I am aware that on motion of the party
served, service is presumed invalid if postal cancellation date or postage meter date is
13 more than one day after date of deposit for mailing in affidavit.
14 XX BY PERSONAL SERVICE:
I caused to be delivered such envelope by hand to the offices of the addressee.
15
BY FEDERAL EXPRESS OR OVERNIGHT COURIER
16
BY TELECOPIER
17 I served by facsimile as indicated on the attached service list.
18 XX BY ELECTRONIC MAIL
I caused said documents to be prepared in portable document format (PDF) for e-mailing
19 and served by electronic mail as indicated on the attached service list.
20 Executed on February 22, 2019, at Los Angeles, California
21 XX (State) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
22
(Federal) I declare that I am employed in the office of a member of the bar of this Court at
23 whose direction the service was made.
24

25 Davida Brook ____________________________

(Type or Print Name) (Signature)
26

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OPPOSITION TO NON-PARTY LAVELY & SINGER, P.C.’S EX PARTE APPLICATION
 SERVICE LIST
1
DeWitt M. Lacy
2 LAW OFFICES OF JOHN L. BURRIS
9701 Wilshire Blvd., Suite 1000
3 Beverly Hills, California 90212
Telephone: (310) 601-7070
4 Facsimile: (510) 839-3882
dewitt.lacy@johnburrislaw.com
5
Attorneys for Plaintiff BIANCA MCKINNEY
6
Martin D. Singer
7 Todd S. Eagan
8 Lavely & Singer, P.C.
2049 Century Park East, Suite 2400
9 Los Angeles, CA 90067
mdsinger@lavelysinger.com
10 Teagan@lavelysinger.com
11 Non-Party Lavely & Singer, P.C.
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OPPOSITION TO NON-PARTY LAVELY & SINGER, P.C.’S EX PARTE APPLICATION