DANIEL M. PETROCELLI (S.B. #97802) DAVID L. KIRMAN (S.B ...

DEFS.’ EX PARTE APPLICATION TO FILE A RESPONSE TO PLS.’ SUPP. MEM.

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DANIEL M. PETROCELLI (S.B. #97802)[email protected] DAVID L. KIRMAN (S.B. #235175) [email protected] O’MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, California 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 JILL A. MARTIN (S.B. #245626) [email protected] c/o TRUMP NATIONAL GOLF CLUB One Trump National Drive Rancho Palos Verdes, CA 90275 Telephone: (310) 202-3225 Facsimile: (310) 265-5522 Attorneys for Defendants DONALD J. TRUMP and TRUMP UNIVERSITY, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

TARLA MAKAEFF, et al., on Behalf of Themselves and All Others Similarly Situated,

Plaintiffs,

v.

TRUMP UNIVERSITY, LLC, et al.,

Defendants.

Case No. 10-CV-0940-GPC(WVG)

DEFENDANTS’ EX PARTE APPLICATION TO FILE A RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM DATE: Under Submission TIME: Under Submission CTRM: 2D JUDGE: Hon. Gonzalo P. Curiel

Case 3:10-cv-00940-GPC-WVG Document 470 Filed 03/18/16 of 4

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TO THE COURT, ALL PARTIES AND THEIR COUNSEL OF

RECORD: PLEASE TAKE NOTICE THAT:

Pursuant to Local Rule 83.3.g.2 and the Chambers Rules of this Court,

defendants Donald J. Trump and Trump University, LLC (“defendants”) hereby

apply on an ex parte basis for an order granting permission to file a response to

plaintiffs’ unauthorized “Supplemental Memorandum and Request for Status

Conference” (Dkt. 466) (the “Supplemental Memorandum”).

On February 8, 2016, plaintiffs filed their motion to withdraw Tarla Makaeff

as lead class representative in this case. (Dkt. 443.) Defendants thereafter filed

their opposition to the motion on February 26, 2016, and plaintiffs filed their reply

on March 3, 2016. (Dkts. 458, 462.) Last Friday, March 11, 2016, this Court held

a hearing on the motion, and, after hearing argument from counsel, the Court took

the matter under submission. See Ex. 2 to the Declaration of David L. Kirman

(“Kirman Decl.”), filed concurrently herewith.

On March 16, 2016, without seeking leave from the Court or notifying

defendants of their intentions, plaintiffs filed the Supplemental Memorandum

without following the filing procedures set forth in the Local Rules and this Court’s

Chambers Rules. (Dkt. 466.)

On March 17, 2016, defendants notified plaintiffs that defendants would file

this application and seek ex parte relief to file a response to the Supplemental

Memorandum. See Kirman Decl., Ex. 2, at ¶ 6 . On March 18, 2016, plaintiffs

informed defense counsel that plaintiffs did not object to defendants seeking ex

parte relief to file a response to the Supplemental Memorandum. Kirman Decl.,

Ex. 2, at ¶ 7.


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I. THERE IS GOOD CAUSE FOR DEFENDANTS’ EX PARTE

APPLICATION

Mindful of the requirements for seeking ex parte relief, defendants bring this

application only because it confronts exigent circumstances resulting in potential

irreparable prejudice. As described more fully in defendants’ Response to

Plaintiffs’ Improper Supplemental Memorandum (“Defendants’ Response”),

plaintiffs’ Supplemental Memorandum requests relief that can be granted only

through an independently noticed motion or ex parte application. See S.D. Cal.

L.R. 16.1.d.3.c (“The trial date must be firm and all requests for continuances of

trial and motions dates will be granted only for good cause shown.”); S.D. Cal. L.R.

16.1.d.3.d (“No trial date will be continued except by written order approved by the

trial judge.”). The Supplemental Memorandum is also procedurally flawed because

it impermissibly argues new legal theories related to plaintiffs’ motion to withdraw.

(See, e.g., Dkt. 466 at 4). Plaintiffs failed to seek leave of Court to file their

supplemental brief in violation of this Court’s Chambers Rules. Hon. Gonzalo P.

Curiel Civ. Pretrial & Trial Proc. at 2 (“The parties must obtain leave of Court by

filing an ex parte request before filing any sur-replies.”).

Unless the Court grants defendants’ ex parte relief, defendants will not have

an opportunity to respond to plaintiffs’ newly raised arguments through a regularly

noticed motion process because the Court has already taken the matter under

submission. See Kirman Decl., Ex. 2. Further, unless ex parte relief is granted,

defendants may be irreparably harmed by not opposing plaintiffs’ Supplemental

Memorandum. See Hon. Gonzalo P. Curiel Civ. Pretrial & Trial Proc. at 2 (“An

opposing party’s failure to file an opposition to any motion may be construed as

consent to the granting of the motion . . . .”).


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II. CONCLUSION

Defendants therefore respectfully request that the Court grant this application

to permit defendants to file the attached Defendants’ Response.

Dated: March 18, 2016

DANIEL M. PETROCELLI DAVID L. KIRMAN O’MELVENY & MYERS LLP

By: /s/Daniel M. Petrocelli Daniel M. Petrocelli

Attorneys for Defendant DONALD J. TRUMP and TRUMP UNIVERSITY, LLC


DEFS.’ RESPONSE TO PLS.’ SUPP. MEM.

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DANIEL M. PETROCELLI (S.B. #97802)[email protected] DAVID L. KIRMAN (S.B. #235175) [email protected] O’MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, California 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779

JILL A. MARTIN (S.B. #245626) [email protected] c/o TRUMP NATIONAL GOLF CLUB One Trump National Drive Rancho Palos Verdes, CA 90275 Telephone: (310) 202-3225 Facsimile: (310) 265-5522

Attorneys for Defendants DONALD J. TRUMP and TRUMP UNIVERSITY, LLC



TARLA MAKAEFF et al., on Behalf of Themselves and All Others Similarly Situated,

Plaintiffs,

v.

TRUMP UNIVERSITY, LLC et al.,

Defendants.

Case No. 10-CV-0940-GPC(WVG)

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM AND REQUEST FOR STATUS CONFERENCE

Hearing: Under submission Time: Under submission Courtroom: 2d JUDGE: Hon. Gonzalo P. Curiel

Case 3:10-cv-00940-GPC-WVG Document 470-1 Filed 03/18/16 Page 1 of 17

TABLE OF CONTENTS

Page

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I. INTRODUCTION ......................................................................................... 1

II. PLAINTIFFS’ FILING IS IMPROPER AND SHOULD BE SUMMARILY DENIED ............................................................................... 2

A. Plaintiffs’ filing violates both the Local Rules and the Chambers Rules of this Court. ............................................................................... 2

B. Plaintiffs’ requests for a trial date and to sever claims should have been properly noticed as a new motion. ....................................... 4

III. PLAINTIFFS’ PROPOSED IN CAMERA REVIEW OF MAKAEFF’S MEDICAL RECORDS IS INADEQUATE .......................... 5

IV. PLAINTIFFS’ REQUEST FOR A TRIAL IN JUNE OR AUGUST IS IMPROPER .............................................................................................. 7

A. Plaintiffs’ request for duplicative trials is contrary to federal law and is illogical. ...................................................................................... 7

B. Plaintiffs suggested “streamlined” trial strategy reflects their tunnel vision view of this case ............................................................ 10

C. Plaintiffs’ “supplemental memorandum” provides additional reasoning to deny Makaeff’s motion to withdraw. ............................. 10

V. CONCLUSION ........................................................................................... 11


TABLE OF AUTHORITIES

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CASES

Allen v. Woodford, 2007 U.S. Dist. LEXIS 11002 (E.D. Cal. Jan. 30, 2007) ...................................... 7

Bealer v. Harris, 2015 U.S. Dist. LEXIS 102051 (E.D. Cal. Aug. 4, 2015) .................................... 3

BP W. Coast Prods. LLC v. SKR Inc., 989 F. Supp. 2d 1109 (W.D. Wash. 2013) ............................................................ 4

Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663 (2006) ................................................................................ 8

Daniels v. Comunity Lending, Inc., 2015 U.S. Dist. LEXIS 62852 (S.D. Cal. May 12, 2015) ..................................... 4

Danjaq LLC v. Sony Corp., 263 F.3d 942 (9th Cir. 2001) ................................................................................. 8

Dollar Sys., Inc. v. Avcar Leasing Sys., Inc., 890 F.2d 165 (9th Cir. 1989) ................................................................................. 9

E.E.O.C. v. Glob. Horizons, Inc., 287 F.R.D. 644 (E.D. Wash. 2012) ....................................................................... 4

Eclipse Med., Inc. v. Am. Hydro-Surgical Instruments, Inc., 262 F. Supp. 2d 1334 (S.D. Fla. 1999) .................................................................. 8

Elias v. Napolitano, 2011 WL 2609862 (C.D. Cal. June 30, 2011) ....................................................... 7

Ferrell v. Glen-Gery Brick, 678 F. Supp. 111 (E.D. Pa. 1987) .......................................................................... 7

Fibermark, Inc. v. Brownville Specialty Paper Prods., 419 F. Supp. 2d 225 (N.D.N.Y 2005) ................................................................... 8

Fritsch v. City of Chula Vista, 187 F.R.D. 614 (S.D. Cal. 1999) ....................................................................... 6, 7


TABLE OF AUTHORITIES (continued)

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Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996) .............................................................................................. 9

Haines v. Black Diamond Props., 2015 Fla. App. LEXIS 15759 (Fla. Dist. Ct. App. 5th Dist. Oct. 23, 2015) ...................................................................................................................... 8

In re Conservatorship of Gregory, 80 Cal. App. 4th 514 (2000) .................................................................................. 8

In re Countrywide Fin. Corp. Sec. Litig., 273 F.R.D. 586 (C.D. Cal. 2009) ........................................................................ 11

Interstate Fire & Cas. Co. v. Underwriters at Lloyd’s, London, 139 F.3d 1234 (9th Cir. 1998) ............................................................................... 2

Johansen v. Combustion Eng’g, Inc., 170 F.3d 1320 (11th Cir. 1999) ............................................................................. 9

Lancaster v. Tilton, 2007 WL 1807953 (N.D. Cal. June 21, 2007) .................................................... 11

Manneh v. Iverness Med. Innovations, Inc., No. 08-0653, 2011 WL 662765 (S.D. Cal. Feb. 11, 2011) ................................... 9

Ross v. Bernhard, 396 U.S. 531 (1970) .......................................................................................... 8, 9

Sloan v. BorgWamer, Inc., 263 F.R.D. 470 (E.D. Mich. 2009) ...................................................................... 11

Soto v. City of Concord, 162 F.R.D. 603 (N.D. Cal. 1995) .......................................................................... 6

Thomas v. Carrasco, 2010 WL 4024930 (E.D. Cal. Oct. 13, 2010), aff’d, 474 F. App’x 692 (9th Cir. 2012) ............................................................................................ 6, 7

Thornton v. Cates, 2013 U.S. Dist. LEXIS 84264 (E.D. Cal. June 13, 2013) ..................................... 3



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Tuyet Tran Gonzalez v. P&G, 2008 U.S. Dist. LEXIS 16872 (S.D. Cal. Mar. 4, 2008) ..................................... 11

United States v. Barnes, 159 F.3d 4 (1st Cir. 1998) ..................................................................................... 3

United States v. Shellef, 756 F. Supp. 2d 280 (E.D.N.Y. 2011) ................................................................... 3

Wahoo Int’l, Inc. v. Phix Doctor, Inc., 2015 U.S. Dist. LEXIS 145720 (S.D. Cal. Oct. 27, 2015) ................................ 5, 6

Westlands Water Dist. v. United States, 100 F.3d 94 (9th Cir. 1996) ................................................................................. 11

STATUTES

Cal. Civ. Code §§ 1750 et seq. ................................................................................... 9

Cal. Welf. & Inst. Code §§ 15600 et seq. ................................................................... 9

Fla. Stat. § 817.41 ....................................................................................................... 9

Fla. Stat. §§ 501.201 et seq. ........................................................................................ 9

Fla. Stat. 501.211(1) ................................................................................................... 8

Fla. Stat. 501.211(2) ................................................................................................... 8

RULES

S.D. Cal. Civ. L.R. 7.1 ............................................................................................ 3, 4

S.D. Cal. Civ. L.R. 7.1.e.1 .......................................................................................... 5

S.D. Cal. L.R. 16.1.d.3.c ............................................................................................. 2

S.D. Cal. L.R. 16.1.d.3.d ............................................................................................ 3

S.D. Cal. Civ. L.R. 83.3.g.2 ........................................................................................ 5



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OTHER AUTHORITIES

Hon. Gonzalo P. Curiel Civ. Pretrial & Trial Proc. .................................................... 3

Judicial Council of California, Advisory Committee on Civil Jury Instructions (CACI) § 3100 et seq. (2016) ............................................................ 8


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I. INTRODUCTION

Like the motion seeking Tarla Makaeff’s dismissal, plaintiffs’ unilateral,

unauthorized “supplemental memorandum” seeks substantive relief that is not

properly before the Court and will cause defendants incurable prejudice. The only

portion of the filing that pertains to the motion under submission is the issue of

Tarla Makaeff’s medical records. Defendants object to the Court’s consideration of

even that portion of plaintiffs’ filing because it was unsolicited, the Court already

took the matter under submission, and plaintiffs failed to seek leave of Court or

otherwise follow the procedural rules necessary to provide notice and move the

Court for the requested relief. Moreover, the highly restrictive review of Makaeff’s

medical records proposed by plaintiffs is unreasonable and unwarranted. Makaeff

made her medical condition a pivotal issue in her motion, and defendants are

entitled to immediate and full access to the information to evaluate Makaeff’s

position and appropriately respond. Plaintiffs can protect Makaeff’s privacy

interests by designating the information as confidential pursuant to the Court’s

existing protective order.

The balance of plaintiffs’ filing asks the Court to sever claims, set a trial date

for some, and leave the rest in limbo—relief that was neither sought nor briefed in

plaintiffs’ motion. The Local Rules and the Chambers Rules of this Court require

such relief to be made by a formal motion, with full notice for briefing and hearing

a hearing date, and preceded by a meet and confer process, all of which plaintiffs

willfully failed to do. As a result, defendants have been forced to respond on an

unanticipated and expedited basis, while also complying with the Court’s other

deadlines.

If considered, the substance of plaintiffs’ requests should be denied because:

• Plaintiffs’ request to sever their complaint and try their equitable claims before their legal claims would violate defendants’ Seventh Amendment rights and is otherwise inconsistent with federal law, which requires legal claims be tried first when severance is



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otherwise appropriate. Even putting that aside, plaintiffs’ proposal is illogical and would disserve the interests of judicial economy and efficiency by further carving up what is already a multi-phase proceeding. In addition to wasting resources of the parties and the Court, it also invites inconsistent findings regarding the same facts and issues.

• Plaintiffs’ abandonment of the mentoring issue does not entitle them to the requested relief. Plaintiffs have now withdrawn one of the three “core misrepresentations” certified by the Court: the allegation that defendants misrepresented that TU students “would receive one year of expert support and mentoring.” Dkt. 298 at 20. This concession does not provide a basis for setting the case for trial on the equitable claims before the legal claims, or setting the case for trial in the midst of the presidential campaign. None of these requests is justified under the law or circumstances of this case.

• A June or August trial is not appropriate. The Court has already set a pretrial order in this case. Plaintiffs’ request to set a trial date in June or August of this year seeks to circumvent that order and is a transparent attempt to prejudice defendants’ ability to defend this case at trial while Mr. Trump is running for President. It also conflicts with plaintiffs’ acknowledgment to this Court that it would be “foolish” to think a fair jury could be selected in the middle of the current presidential campaign.

Defendants respectfully request that plaintiffs’ unauthorized filing be rejected

in its entirety.

II. PLAINTIFFS’ FILING IS IMPROPER AND SHOULD BE SUMMARILY DENIED

A. Plaintiffs’ filing violates both the Local Rules and the Chambers Rules of this Court.

Plaintiffs’ supplemental memorandum violates the filing requirements for

both a motion and sur-reply. In addition to advancing new arguments in response

to defendants’ opposition to Makaeff’s pending motion, plaintiffs’ filing seeks new

substantive relief necessitating separate motions. See S.D. Cal. L.R. 16.1.d.3.c

(“The trial date must be firm and all requests for continuances of trial and motions



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dates will be granted only for good cause shown.”); S.D. Cal. L.R. 16.1.d.3.d (“No

trial date will be continued except by written order approved by the trial judge.”);

see also United States v. Barnes, 159 F.3d 4, 11 (1st Cir. 1998) (noting that

“pretrial motion” under the Speedy Trial Act “encompass[es] all manner of

motions, ranging from informal requests for laboratory reports . . . to ‘implied’

requests for a new trial date” (internal citations omitted)); United States v. Shellef,

756 F. Supp. 2d 280, 298–300 (E.D.N.Y. 2011) (“Government’s letter asking the

Court to set a trial date, and to resolve other pretrial matters . . . is a ‘substantive

motion’”).

Plaintiffs’ filing flouts the Court’s Chambers Rules, which expressly limit a

party’s ability to file supplemental pleadings in support of a motion: “parties must

obtain leave of Court by filing an ex parte request before filing any sur-

replies.” Hon. Gonzalo P. Curiel Civ. Pretrial & Trial Proc. at 2 (emphasis added).

Their supplemental memorandum falls within the broad definition of sur-reply

because it clearly amounts to “an additional reply to a motion filed after the motion

has already been fully briefed.” Bealer v. Harris, 2015 U.S. Dist. LEXIS 102051,

at *2 (E.D. Cal. Aug. 4, 2015) (emphasis added); accord Thornton v. Cates, 2013

U.S. Dist. LEXIS 84264, at *1–2 (E.D. Cal. June 13, 2013) (same). Indeed,

plaintiffs, the movant seeking Makaeff’s withdrawal, have even less justification to

file a supplemental response or sur-reply to their own motion, since they already

responded to defendants’ opposition in their reply as well as at the hearing on their

motion.

Plaintiffs’ filing also violates the Local Rules. Local Rule 7.1 permits only

the filing of a motion, an opposition, and a reply. S.D. Cal. Civ. L.R. 7.1. It does

not permit the filing of a sur-reply by the non-movant or any supplemental briefing

by the movant following the movant’s reply. Although “[a] district court may

allow a sur-reply to be filed,” it may do so “only where a valid reason for such

additional briefing exists, such as where the movant raises new arguments in its



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reply brief.” Daniels v. Comunity Lending, Inc., 2015 U.S. Dist. LEXIS 62852, at

*10–11 (S.D. Cal. May 12, 2015) (finding that “Plaintiff did not seek leave of the

Court to file the surreply, or attempt to show that a valid reason for additional

briefing exists”); accord E.E.O.C. v. Glob. Horizons, Inc., 287 F.R.D. 644, 648

(E.D. Wash. 2012) (striking “supplement” to a fully briefed motion, noting that

“[i]f a party determines it has a need to exceed Local Rule 7.1’s motion-response-

reply limitation, that party must file a properly-noted motion seeking leave to file

supplementary filings”).

Plaintiffs filed their reply brief midday on Thursday, March 3, 2016, several

hours before a nationally televised Presidential debate and a day and a half before

their reply was due to the Court. Dkt. 462. Plaintiffs’ strategic decision to file

early, and to lace their brief with pages of attacks on defendants having no bearing

on issues in their motion, does not entitle them to a new brief. Simply styling their

arguments as “plaintiffs’ positions” does not transform them from what they are in

substance: an improper sur-reply and new motions for which plaintiffs did not ask

or receive permission from the Court. Nor could plaintiffs have expected leave to

file additional briefing had they followed the rules, since defendants have not made

any filings on this motion since their opposition, let alone presented any “new

arguments.” See Daniels, 2015 U.S. Dist. LEXIS 62852, at *10–11.

B. Plaintiffs’ requests for a trial date and to sever claims should have been properly noticed as a new motion.

Much of plaintiffs’ filing raises new substantive issues to which defendants

have not been given an opportunity to respond. For example, plaintiffs ask the

Court to (1) sever plaintiffs’ legal claims from their equitable claims, (2) try

equitable claims before legal claims, and (3) set a bench trial in June or August to

proceed on the equitable claims. Recognizing these requests conflict with the law,

plaintiffs try to circumvent defendants’ Seventh Amendment right to a jury trial:

“[b]y waiving res judicata and issue preclusion, plaintiffs will avoid impinging



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upon defendants’ right to a jury trial for any remaining legal claims.” Dkt. 466 at 3.

The Court did not ask for briefing on this issue, it is not relevant to the pending

motion, and its wrong.1 Plaintiffs must meet and confer and file a properly noticed

motion with the Court. S.D. Cal. Civ. L.R. 7.1.e.1. Or, if they can demonstrate a

need for immediate relief, plaintiffs must file an ex parte application. See S.D. Cal.

Civ. L.R. 83.3.g.2. They did neither.

Plaintiffs’ failure is particularly egregious given that counsel to the parties

met and conferred about separate issues the day before plaintiffs filed their

improper reply, and plaintiffs’ counsel said not one word about their imminent

filing. Kirman Decl. ¶ 3. Plaintiffs’ actions evidence a complete disregard for this

Court’s Rules and defendants’ rights. See Wahoo Int’l, Inc. v. Phix Doctor, Inc.,

2015 U.S. Dist. LEXIS 145720, at *10 (S.D. Cal. Oct. 27, 2015) (Curiel, J.) (Court

has “discretion and authority to impose sanctions for failing to comply with court

orders”); id. (Dkt. No. 80 at 8) (Dec. 2, 2014) (“[T]he Court finds it appropriate to

issue sanctions against . . . counsel for . . . failing to comply with Court orders.”).

III. PLAINTIFFS’ PROPOSED IN CAMERA REVIEW OF MAKAEFF’S MEDICAL RECORDS IS INADEQUATE

After refusing to grant defendants any access to Makaeff’s medical records,

plaintiffs now propose an in camera review of her medical records with the

following severe limitations:

• The review will occur in Chambers on a “Confidential – For Counsel Only” basis;

• Only one attorney for the defense will be allowed to review the records and make any arguments;

• Defense counsel may not receive copies, take notes, or create any record relating to the medical records;

• Defense counsel cannot share the information with anyone, including their own client, in-house counsel, or co-counsel;

1 See Section IV.A., infra.



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• Defense counsel shall not use the information “for any other purpose in this litigation or otherwise”; and

• The records will be afforded the highest levels of protection under the operative Protective Order.

This proposal is wholly unjustified. In federal court, medical information

cannot be withheld on the basis of privilege. Fritsch v. City of Chula Vista, 187

F.R.D. 614, 633 (S.D. Cal. 1999) (“There is no federal physician-patient privilege

protecting medical records from discovery.”); Soto v. City of Concord, 162 F.R.D.

603, 618 (N.D. Cal. 1995) (“The patient-physician privilege does not exist at

federal common law and the Ninth Circuit has not recognized a physician-patient

privilege, nor a psychotherapist-patient privilege under federal law.”). Parties who

place their medical condition at issue waive any right to privacy in that

information. See Thomas v. Carrasco, 2010 WL 4024930, at *4 (E.D. Cal. Oct. 13,

2010) (“By prosecuting Thomas I, Plaintiff voluntarily put his medical condition at

issue and, accordingly, waived any right to privacy in his medical records.”), aff’d,

474 F. App’x 692 (9th Cir. 2012); Ferrell v. Glen-Gery Brick, 678 F. Supp. 111,

112–13 (E.D. Pa. 1987) (“[B]oth courts and commentators alike have consistently

taken the view that when a party places his or her physical or mental condition in

issue, the privacy right is waived.”). For this reason, it is well established that

individuals have only a “limited right of privacy in one’s medical

information.” Allen v. Woodford, 2007 U.S. Dist. LEXIS 11002, at *31 (E.D. Cal.

Jan. 30, 2007) (emphasis added); accord Fritsch, 187 F.R.D. at 633 (same).

When medical information (or any sensitive information) is placed at issue in

an adversarial proceeding, parties must be given sufficient opportunity to review

and analyze the information. Elias v. Napolitano, 2011 WL 2609862, at *3 (C.D.

Cal. June 30, 2011) (granting defendants discovery of plaintiff’s medical records

because plaintiff’s medical condition was relevant to the litigation and plaintiff had

not adequately explained how any threat to his privacy interests outweighed



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defendant’s legitimate interest in obtaining complete discovery). Medical records

are highly technical, and defendants’ attorneys are not medical professionals who

can readily understand medical records under the criteria proposed by plaintiffs’

counsel. The meaning and substance of Makaeff’s medical records may require

review by and consultation with a medical expert retained by defendants.

IV. PLAINTIFFS’ REQUEST FOR A TRIAL IN JUNE OR AUGUST IS IMPROPER

A. Plaintiffs’ request for duplicative trials is contrary to federal law and is illogical.

Defendants have a constitutional right to a jury trial for certain claims and

have demanded a jury. Until now, plaintiffs have also demanded a jury trial. As it

stands, the trial has already been divided into at least two, and perhaps three,2

separate proceedings: a class-wide liability phase; a damages phase related to the

named class representatives; and a decertified damages phase for non-class

representatives. These three proceedings are in addition to a potential trial in Art

Cohen v. Donald J. Trump, which is based on the same alleged conduct. Plaintiffs

now request another phase, this time seeking to sever their legal causes of action

from their equitable claims, with trial of the equitable claims to occur first in June

or August, and trial of the legal claims to occur thereafter at some unspecified time.

Plaintiffs’ proposed trial plan is inconsistent with federal law. A majority of

plaintiffs’ claims are legal causes of action,3 which implicate defendants’ Seventh 2 During the December 4, 2015 status conference, the Court noted that it was considering several possible damages-phase options. The options that would be consistent with the parties’ right to a jury trial involved “grouping” absent class members for trial into subclasses based on their “expressed views or positions” or trying liability as it pertains to the class, together with or followed by damages proceedings related only to the class representatives. Ex A at 7. 3 See Colgan v. Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663, 695 (2006) (“Damages under the CLRA are a legal remedy”); In re Conservatorship of Gregory, 80 Cal. App. 4th 514, 520 (2000) (affirming jury verdict on California Elder Abuse claim); see also Judicial Council of California, Advisory Committee on Civil Jury Instructions (CACI) § 3100 et seq. (2016) (jury instructions for Cal. Elder Abuse claims); Fibermark, Inc. v. Brownville Specialty Paper Prods., 419 F. Supp. 2d 225, 230 (N.D.N.Y 2005) (affirming jury verdict found “in favor of



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Amendment right to a jury trial. See Danjaq LLC v. Sony Corp., 263 F.3d 942, 962

(9th Cir. 2001) (Seventh Amendment jury trial right exists for legal causes of

action). As the Supreme Court explained in Ross v. Bernhard, in circumstances

such as here, “where equitable and legal claims are joined in the same action, there

is a right to jury trial on the legal claims which must not be infringed either by

trying the legal issues as incidental to the equitable ones or by a court trial of a

common issue existing between the claims.” 396 U.S. 531, 537–38 (1970). Thus,

“where there are issues common to both the equitable and legal claims, the

legal claims involved in the action must be determined prior to any final court

determination of [the] equitable claims.” Dollar Sys., Inc. v. Avcar Leasing Sys.,

Inc., 890 F.2d 165, 170 (9th Cir. 1989) (emphasis added); accord Manneh v.

Iverness Med. Innovations, Inc., 2011 WL 662765, at *3 (S.D. Cal. Feb. 11, 2011)

(plaintiffs’ request to sever equitable and legal causes of action “not appropriate”

because “there [were] issues common to both the equitable and legal claims.”).

Indeed, the jury’s determination of the facts may preclude a contrary result on the

equitable claims. Johansen v. Combustion Eng’g, Inc., 170 F.3d 1320, 1330 (11th

Cir. 1999) (“The Seventh Amendment incorporated this principle, forbidding any

reexamination of a jury’s determination of the facts.”); see also Gasperini v. Ctr.

for Humanities, Inc., 518 U.S. 415, 451 (1996) (“The second clause of the

Amendment responded to that concern by providing that in suits at common law no

fact tried by a jury, shall be otherwise re-examined in any Court of the United

States, than according to the rules of the common law.”).

Plaintiff on the deceptive acts and practices claim under N.Y. Gen. Bus. Law § 349.”); Eclipse Med., Inc. v. Am. Hydro-Surgical Instruments, Inc., 262 F. Supp. 2d 1334, 1357 (S.D. Fla. 1999) (“FDUTPA offers two types of remedies: equitable relief in the form or declaratory or injunctive relief pursuant to Fla. Stat. 501.211(1) or ‘actual damages’ pursuant to Fla. Stat. 501.211(2).”); Haines v. Black Diamond Props., 2015 Fla. App. LEXIS 15759, at *3–4 (Fla. Dist. Ct. App. 5th Dist. Oct. 23, 2015) (jury trial on Florida MAL claims); Dkt. 128, ¶¶ 221, 228–29 (Third Amended Complaint alleging plaintiffs are “entitled to damages” under the FDUTPA and MAL).



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Plaintiffs’ proposal would result in massive duplication of time, effort, and

resources, requiring the Court to separately try plaintiffs’ UCL and FAL claims

from a separate jury trial on their remaining legal claims, even though these claims

require determination of identical facts.4 In other words, there would be two nearly

identical trials, and perhaps a third one in Cohen.

Plaintiffs’ proposal also would require the Court to conduct a trial at a time

when this case has become a politicized national story and while Mr. Trump is

running for President. Not only would such a trial impose an extreme hardship on

defendants, it would also invite a “media circus” (as plaintiffs’ counsel called it, see

Kirman Decl., Ex. B at 31) and be exceptionally difficult for all parties involved.

Even plaintiffs’ counsel conceded the point:

We’ve all seen high-profile cases, but nothing like this. Now, whether that impacts our ability to pick a fair jury, it would be foolish for me to say it wouldn’t. I mean, of course it would. Ex. B at 36.

Finally, there is no reason to revisit the Court’s pretrial rulings and order on

scheduling, which was litigated by the parties and included a lengthy hearing. See

Ex. A. That order set forth various pretrial requirements—including meeting and

conferring by April 1st regarding how trial will proceed in light of the Court’s

decertification of damages, see Dkt. 442, and there is no good reason to deviate

from it.

4 Plaintiffs’ legal causes of action are (1) deceptive practices and misrepresentation in violation of California’s Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq.; (2) financial elder abuse in violation of Cal. Welf. & Inst. Code §§ 15600 et seq.; (3) unfair competition, practices, or acts in violation of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201 et seq.; (4) misleading advertisement in violation of Florida’s Misleading Advertising Law, Fla. Stat. § 817.41; and (5) deceptive acts and practices in violation of section 349 of New York’s General Business Law.



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B. Plaintiffs suggested “streamlined” trial strategy reflects their tunnel vision view of this case.

Plaintiffs argue that their proposed trial plan would “streamline” the case

because it will limit the triable issues to two, rather than three, alleged class-wide

misrepresentations. Dkt. 466 at 3.5 Plaintiffs view of this case, however, is not

controlling on how this case will ultimately be tried. Defendants intend to

demonstrate that the alleged misrepresentations were not false, were not material,

were not relied on, and did not cause damage. Defendants intend to call Ms.

Makaeff and other witnesses to refute plaintiffs’ claims. Plaintiffs’ tactical decision

to withdraw one of the certified claims from the case does not negate defendants’

right to call Ms. Makaeff or otherwise impair defendants from presenting a full and

vigorous defense.

C. Plaintiffs’ “supplemental memorandum” provides additional reasoning to deny Makaeff’s motion to withdraw.

Plaintiffs now say trial should be set in June or August because of “the

uncertainties that lie ahead, the length of time this case has been pending, and the

advanced age of California class representative Sonny Low (“Low”) and other class

members.” Dkt. 466 at 2. Any issue regarding Sonny Low’s “advanced age,”

which was not raised in plaintiffs’ prior briefing or at the hearing on their motion,

only underscores the reasons why plaintiffs’ motion to dismiss Makaeff should be

denied.

5 As further illustration of plaintiffs’ continuing efforts to keep their theories in this case a moving target, the “simple case” articulated in plaintiffs’ supplemental memorandum bears no relation to the actual alleged misrepresentations certified by the Court. Plaintiffs want to try a case that “that people were promised an actual university, and they didn’t get one. And they were promised an actual university with which Donald Trump was integrally involved, and he wasn’t.” Dkt. 466 at 5–6. The remaining common questions certified by the Court, however, relate only to (1) whether defendants misrepresented that Trump University was an “accredited university”; or (2) whether defendants misrepresented that students would be “taught by real estate experts, professors and mentors hand-selected by Mr. Trump.” Makaeff Decert. Order at 7; Makaeff Cert. Order at 4.



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If, in fact, Mr. Low is suffering from health problems associated with his age,

then he may not be an adequate class representative for the California subclass at

all.6 In re Countrywide Fin. Corp. Sec. Litig., 273 F.R.D. 586, 607 (C.D. Cal.

2009) (“If Brahn suffers another acute health problem, Brahn may be unable to

discharge his duties as class representative.”); Sloan v. BorgWamer, Inc., 263

F.R.D. 470, 475 (E.D. Mich. 2009) (finding inadequate a class representative with a

history of poor health).

V. CONCLUSION

The Court should decline to consider plaintiffs’ unauthorized supplemental

memorandum and deny all requested relief.

Dated: March 18, 2016 O’MELVENY & MYERS LLP

DANIEL M. PETROCELLI DAVID L. KIRMAN

By: /s/Daniel M. Petrocelli Daniel M. Petrocelli

Attorneys for Defendant DONALD J. TRUMP and TRUMP UNIVERSITY, LLC

6 Notably, plaintiffs’ position stands in sharp contrast to plaintiffs’ many representations in their motion that Mr. Low was a perfect class representative and replacement for Ms. Makaeff.


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DANIEL M. PETROCELLI (S.B. #97802)[email protected] DAVID L. KIRMAN (S.B. #235175) [email protected] O’MELVENY & MYERS LLP 1999 Avenue of the Stars Los Angeles, California 90067-6035 Telephone: (310) 553-6700 Facsimile: (310) 246-6779 JILL A. MARTIN (S.B. #245626) [email protected] TRUMP NATIONAL GOLF CLUB One Trump National Drive Rancho Palos Verdes, CA 90275 Telephone: (310) 202-3225 Facsimile: (310) 265-5522 Attorneys for Defendants DONALD J. TRUMP and TRUMP UNIVERSITY, LLC



TARLA MAKAEFF et al., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. DONALD J. TRUMP, Defendant.

Case No. 10-CV-0940-GPC(WVG) DECLARATION OF DAVID L. KIRMAN IN SUPPORT OF (1) DEFENDANTS’ EX PARTE APPLICATION TO FILE A RESPONSE TO PLAINTIFFS’ “SUPPLEMENTAL MEMORANDUM AND REQUEST FOR STATUS CONFERENCE” AND (2) DEFENDANTS’ OBJECTION AND RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM


- 1 - KIRMAN DECLARATION 10-CV-0940-GPC(WVG)

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I, David L. Kirman, declare as follows:

1. I am an attorney duly licensed to practice in California. I am a

member with the law firm of O’Melveny & Myers LLP, counsel of record for

defendants Donald J. Trump and Trump University, LLC (collectively,

“defendants”). I have personal knowledge of the matters stated herein, and, if

called upon, I could and would competently testify thereto.

2. I submit this declaration in support of: (1) Defendants’ Ex Parte

Application to File a Response to Plaintiffs’ “Supplemental Memorandum and

Request for Status Conference” (“Ex Parte Application”); and (2) Defendants’

Response to Plaintiffs’ Supplemental Memorandum (“Defendants’ Response”).

3. On March 15, 2016, at approximately 10:30 a.m., I participated in a

telephonic meet and confer with plaintiffs’ counsel, Dan Pfefferbaum and Brian

Cochran of Robbins Geller Rudman & Dowd LLP, regarding outstanding issues

related to expert witness discovery. Neither Mr. Pfefferbaum nor Mr. Cochran

informed me during the call that plaintiffs intended to file plaintiffs’

“Supplemental Memorandum and Request for Status Conference” (Dkt. 466) (the

“Supplemental Memorandum”).

4. On March 16, 2016, at 1:23 p.m., Mr. Pfefferbaum emailed me

regarding one of the issues we had discussed during the March 15, 2016 meet and

confer. Mr. Pfefferbaum did not inform me that plaintiffs intended to file the

Supplemental Memorandum.

5. On March 16, 2016, at 2:46 p.m., I received notification through

CM/ECF that plaintiffs filed the Supplemental Memorandum. Prior to the filing,

plaintiffs did not provide defendants any notice that they intended to file the

Supplemental Memorandum.

6. On March 17, 2016, at 2:43 p.m., I sent an email to plaintiffs’ counsel

to provide notice that defendants intended to file the Ex Parte Application and

Defendants’ Response. I informed plaintiffs’ counsel that Defendants’ Response


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would address both the form of the Supplemental Memorandum and its merits. I

stated that defense counsel would file the Ex Parte Application on either March 17

or March 18, 2016, and that defense counsel would be willing to meet and confer

about the filing if plaintiffs' counsel so desired.

7. On March 18, 2016,1 spoke with Rachel Jenson and Jason Forge of

Robbins Geller Rudman & Dowd LLP, regarding the Ex Parte Application. Mr.

Forge informed me that plaintiffs did not object to defendants filing a response to

plaintiffs' Supplemental Memorandum.

8. Attached to this Declaration are true and correct copies of the

following documents:

Exhibit Description Page

1 Excerpt of Transcript of Status Hearing before the Hon. Gonzalo P. Curiel, December 4, 2015 3

2 Excerpt of Transcript of Motion Hearing before the Hon. Gonzalo P. Curiel, March 11, 201c 21

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct. Executed this 18th day of March,

2016, at Los Angeles, California.

Ost== David L. Kirman

- 2 - KIRMAN DECLARATION 10-C V -0940-GPC{ WVG)


EXHIBIT 1


110-cv-00940-GPC-WVG


FOR THE SOUTHERN DISTRICT OF CALIFORNIA

TARLA MAKAEFF, et al., on .Behalf of Themselves and All .Others Similarly Situated, . . Docket

Plaintiffs, . No. 10-cv-00940-GPC-WVG v. .

. TRUMP UNIVERSITY, LLC, .et al., .

Defendants. . San Diego, California . . . . . . . . . . . . . . . . December 4, 2015

TRANSCRIPT OF STATUS HEARING BEFORE THE HONORABLE GONZALO P. CURIEL

UNITED STATES DISTRICT JUDGE

A-P-P-E-A-R-A-N-C-E-S For the Plaintiffs: Robbins Geller Rudman & Dowd LLP

655 West Broadway, Suite 1900 San Diego, California 92101 By: JASON A. FORGE, ESQ. RACHEL L. JENSEN, ESQ. DANIEL J. PFEFFERBAUM, ESQ. - and - Zeldes Haeggquist & Eck, LLP 625 Broadway, Suite 1000 San Diego, California 92101 By: AMBER LEE ECK, ESQ.

For the Defendants: Foley & Lardner, LLP

3579 Valley Centre Drive, Suite 300 San Diego, California 92130 By: NANCY L. STAGG, ESQ. BENJAMIN J. MORRIS, ESQ. - and - O'Melveny & Myers LLP 1999 Avenue of the Stars, Suite 700 Los Angeles, California 90067 By: DAVID L. KIRMAN, ESQ. DANIEL M. PETROCELLI, ESQ.

Court Reporter: Chari L. Possell, RPR, CRR

333 West Broadway, Suite 420 San Diego, California 92101

Reported by Stenotype, Transcribed by Computer

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Exhibit 1 3



SAN DIEGO, CALIFORNIA; DECEMBER 4, 2015; 1:51 P.M.

-o0o-

THE CLERK: Number 8 on calendar, Case 10-cv-0940,

Makaeff v. Trump University, et al., for a status hearing.

THE COURT: Appearances, please.

MS. STAGG: Good afternoon, Your Honor. Nancy Stagg

on behalf of the defendants. Along with me is Mr. Morris. And

then I would like to introduce Mr. Petrocelli and Mr. Kirman,

who will be joining us.

THE COURT: Mr. Petrocelli and Mr. Kirman, welcome.

MR. PETROCELLI: Good afternoon, Your Honor.

MR. KIRMAN: Good afternoon, Your Honor.

MR. FORGE: Good afternoon, Your Honor. Jason Forge

on behalf of the plaintiffs and the class. With me at counsel

table is Rachel Jensen, Dan Pfefferbaum, and Amber Eck.

THE COURT: Good afternoon to you all. Thank you for

being here. We are here on a status conference to address

issues relating to pretrial conference, meet-and-confers, and a

plan to get this case tried.

Just so you know, at this point, this is my oldest case

that I have on my docket -- well, not exactly. I have one

older case, and that's from 1951, and it was first handled by

Judge Weinberger, who the bankruptcy court is named after, and

it involves water rights, and it will probably be around long

after we are all gone. But after that one, this is my oldest

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Exhibit 1 4



case, so I am anxious to move it forward.

Obviously, everyone knows this is a unique set of

circumstances that we have here. There's not many cases where

there's a presidential candidate who is one of the parties in

the case, and I appreciate that Mr. Trump himself would like to

have a trial date for any number of reasons, vindication or for

purposes of finality. The plaintiffs would like a trial date

for purposes of vindication, finality. Everyone would like

some form of finality in the foreseeable future. And I expect

that there's probably not a perfect date for a trial date in

the next year or two, but it is my goal to set a trial next

year, and hopefully the middle of next year.

So at this point, I have previously issued and withdrawn a

proposed schedule for pretrial disclosures, meet-and-confers,

and a final pretrial conference. The parties asked me to set

that aside given your holiday schedules. I have. And you

offered, as a possible alternative, a schedule which would have

the pretrial disclosures made on or before February 5, meet and

confer by February 12, proposed pretrial order submitted by

March 5, and a final pretrial conference on March 12. I am

inclined to go with that and just confirm that that is

something that would work for the parties.

MR. PETROCELLI: May I address the Court?

THE COURT: Yes.

MR. PETROCELLI: Your Honor, first of all, I

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Exhibit 1 5



appreciate Your Honor acknowledging the unique circumstances of

this case, and it is true that it poses some rather unique

challenges.

On the setting of the trial, certainly, as much as we

would like finality and like to have these matters put to rest,

given the primary season -- March 1 is Super Tuesday. We will

know a lot more by the spring. I think the convention on the

Republican side is in July. We would certainly request that a

trial not be set sooner than July so that Mr. Trump has the

ability to complete that part of the campaign.

With respect to the immediate issues, Your Honor, I have

had a chance, with counsel on our side, and also briefly

discussed with plaintiffs' counsel before we came in here, some

issues that have been raised by Your Honor's recent order

decertifying the case as to damages. And rather than try to

discuss, address, and let alone resolve all of those today on

the fly, what my suggestion was to plaintiffs' counsel and to

the Court is that we sit down together, go over these issues,

and present either a joint plan to the Court or competing plans

to the Court, and then the Court make some rulings.

It's our view that before the case can be tried, either

one or any phase of the case, we need some clarity and

certainty on exactly what the Court intends to try in which

phase of the case, and I have identified a couple of those

issues to plaintiffs' counsel.

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Exhibit 1 6



And I think the best way to deal with this is our just

putting it in writing and letting the Court read it and

consider it and then come back, you know, whenever the Court's

calendar would permit early in the year to address these

issues.

It will also include, for example, the question of

whether, when we enter into the damages phase of this case, who

are the plaintiffs who are going to stand up and participate in

this case? It's one thing not to opt out of a class when you

get a notice in the mail. It's quite another thing to want to

be a natural plaintiff who has to come in and prove damages.

And I believe that due process and other considerations entitle

us to know who the plaintiffs are before we try any phase of

this case so we know what kind of claims and what kind of

exposure we are facing. And that's one issue that I have

identified.

Another issue I have identified is we believe that

discovery should be allowed with respect to the plaintiffs who

intend to participate in any damages phase of this case so that

we can examine the plaintiffs before trial on whether and to

what extent they were harmed and whether any of these alleged

representations caused them any harm.

One of the questions on my mind is, for example, the issue

of causation. In certain cases, causation is not really an

issue once you determine liability issues on a classwide basis.

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Exhibit 1 7



I can think of a wage-and-hour or a number of employment cases

as an example. But in a case like this, I don't think you can

extricate or decouple the question of causation from the

question of damage because, for example, if a person were to

say, when we were examining them on whether they got any value

from these courses, whether they were useful, whether they

learned anything, whether any of these representations mattered

to them, they might say no, they didn't.

THE COURT: Mr. Petrocelli, I understand there are a

number of remaining questions, and I appreciate that you at

this point are thoughtfully identifying them, you are flagging

them. And it's apparent that we are in an area that doesn't

have a lot of guidance in terms of what do we do next. There's

hundreds if not thousands of cases that deal with issues

involving class certification, predominance as it relates to

damages and other issues; but once you get to class action

trials, there's not that many. Once you get to class action

trials that are bifurcated, there's even less. So there's not

a lot of guidance out there.

And you will have different commentators, from Newberg and

other sources, that provide possible suggestions, and they are

floated. There's not a lot of, kind of, testing of these

models. And it may be that that's what we are going to do, is

we are going to test some of these models.

So I am certainly open to hear from the parties what they

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Exhibit 1 8



think makes sense. As a starting point, I would expect that

you all are going to look closely at the lay of the land in

terms of cases where you actually have had a class certified,

that you had a bifurcation, and what the court did at trial.

There's probably not going to be that many cases, but you are

going to be able to find them. And you will hopefully be in a

position to see what worked, what didn't work, what made it to

the appellate level to be tested there. And so you will start

with that as a starting point, and then you will meet and

confer, and to the extent that you can agree on something, you

will. I expect that it won't be that easy. I will have to

intervene -- that's my job -- and come up with a solution.

One of the things that I have been kicking around in my

mind -- because I have been thinking about this as well, as I

am sure you all have -- is the prospect of bifurcating as to

liability. And keeping in mind that we have both issues at law

and equitable-based claims, 17200 and such. And then as to the

named plaintiff representatives, in the event that the

plaintiffs prevail, maybe continue with damages only as to

those individuals.

I am not sure what your views on that are, that we would

do it with the same original jury that were to find liability

or at a later point in time. But that's one of the things I am

thinking about; at a minimum, we would have the action

concluded as to the representative parties. And then as to the

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Exhibit 1 9



remaining parties, if liability was found, then we would be in

a position to determine how do we go forward? Is it special

masters? Or through some kind of identification of certain

types of plaintiffs that have similar, kind of, expressed views

or positions and group them? I don't know. But I am looking

to counsel, and we have learned counsel, so there's no reason

that, between all of us, we can't make it through this. That's

how I see it.

MR. PETROCELLI: I concur with that approach, Your

Honor. That's what I would ask the Court to give us permission

to do.

THE COURT: I expect that you all will be looking at

this very closely on your own. And I will direct you to meet

and confer and try to arrive at as many agreements on this as

you can.

And then I expect that, prior to the motion in limine

hearing date, that's when we will have, kind of, a

crystallization of a lot of this. We will have crystallization

as to the parties' respective positions, the oppositions, and

then I will be able to look at it and fashion what I think is a

means to get us through this in a fair, reasonable manner.

MR. PETROCELLI: I would be -- could we schedule a

schedule for us to meet and confer, and then come back on a

date in -- let's say in January to address some of these open

issues?

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Exhibit 1 10



THE COURT: Let me ask. Is there any reason why, as

a starting point, we can't adopt this offered schedule of

March 12 for the final pretrial conference? And I will take

seriously what you asked as far as avoiding a trial in May or

June. And frankly, I was hoping for trial in June, but I

understand that this is an out-of-the-ordinary case, and

perhaps I can hold off.

MS. STAGG: Yes, Your Honor. One question, though,

with regard to, for example, the February 4 date --

THE COURT: Yes. Or February 5th?

MS. STAGG: I thought the Court said February 4 for

the disclosures. I am sorry. The 5th.

Are we talking about just doing the disclosures for the

bifurcated liability phase of the trial? That's one of the

issues. I am not sure what we are supposed to be doing for

that date, for example.

THE COURT: One of the things that I floated right

now was the possibility of going forward not only as to the

liability issues at the bifurcated trial, but afterwards, if

there was liability found, that we would proceed with the

damages issues as to only those named or those representatives

of the class.

Do you have any position on that or how that would affect

pretrial disclosure?

MS. STAGG: Well, obviously, if we understand what

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Exhibit 1 11


1010-cv-00940-GPC-WVG

the Court is expecting -- because one of the issues is we don't

even know who the plaintiffs -- the non-representative

plaintiffs would be of the damages phase. I heard what the

Court is saying; you are saying with regard to only those four

named plaintiffs who are remaining on the class claims. So the

Court is saying that those disclosures in February should be on

the whole trial, or just the bifurcated?

THE COURT: It would certainly be as to liability.

And then my view is it would also be as to the representative

parties, the plaintiffs.

And then as far as beyond that, I would be inclined to say

that let's just wait and see what happens with liability. If

the jury comes back in favor of Mr. Trump, then this is all a

nonissue and we would have gotten all dressed up with nowhere

to go. If there is liability found against Mr. Trump, then in

August or whenever this trial occurs, we can regroup and see

where do we go from here?

By that point, we will have been in the position to

address or start talking about moving forward beyond liability

and whether or not it would be through the use of a special

master or through grouping of plaintiffs or some other means.

As far as discovery, I would be inclined to find that

discovery would be appropriate to some extent.

But at the same time, I don't pretend to know all the

answers at this point. I don't think anyone does. I am

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Exhibit 1 12


1110-cv-00940-GPC-WVG

looking for counsel to provide the Court with their expert

advice, opinions, pleadings on these issues.

MS. STAGG: And one other issue in regard to those

disclosures, we may not, until we hear from the Court and have

met and conferred and have the Court resolve the issue,

understand where the line is between the liability and the

damages phase even as to those plaintiffs because of some of

the issues that counsel raised about causation. And so, again,

I don't know that we are in a position -- nor may plaintiffs

be -- to say "This is Phase I, and this is Phase II." We may

have to do the disclosures. I just wanted to run that issue by

the Court as well.

THE COURT: I think that brings up a fair question as

to whether or not this is a case that perhaps deserves a couple

of pretrial conferences. And as a starting point, a pretrial

conference on March 12 I think does make sense. And it may not

fully get us there, but I would hope that it would move us in

the right direction. It would get us close to where we need to

be to set a motions in limine hearing date and a trial date.

MR. FORGE: Jason Forge, Your Honor, for the

plaintiffs.

Your Honor, I don't think we have a whole lot of

disagreement with -- I don't think we have any disagreement

whatsoever with anything the Court raised.

The only thing I would ask, with respect to these dates --

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Exhibit 1 13


1210-cv-00940-GPC-WVG

obviously, we proposed them to the Court, so I am not

suggesting they are not doable. They are doable. Ideally, I

would ask for a little bit lengthier windows between the

different milestones because I think this is a case where we

have a majority of the witnesses who are not susceptible to

process in this district. So we have taken roughly four dozen

depositions, and I have roughly 1,000 unique deposition

exhibits. There's a lot of paperwork to get through. There's

a lot of work to be done with the deposition designations. And

I think that there's -- although we obviously have disagreed on

quite a lot of points, I think that building in a couple more

weeks here and a couple more weeks there would enable the

parties to at least pursue to a logical conclusion whether we

can reach some agreement on issues such as objections to

exhibits and deposition designations. And I am happy to do it

now, or I can confer with counsel after, and we can make a new

proposal.

It would still have us on schedule for a trial in August,

if that winds up working out. It just wouldn't be quite as

aggressive as the one that we proposed before, but it would

still work in terms of the timing that Your Honor suggested.

THE COURT: All right. I am amenable. I am flexible

with respect to a little bit more give on those dates.

What are we are talking about? Adding another two or

three weeks to each one of the dates?

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Exhibit 1 14


1310-cv-00940-GPC-WVG

MR. FORGE: Basically, Your Honor, what we had

sketched out is we would wind up with a hearing on April 15.

The first date, the 26(a)(3) date, would move to February 12.

We would --

THE COURT: I am sorry? The pretrial disclosures?

MR. FORGE: The pretrial disclosures date would be

February. The parties would exchange objections to exhibits

and designations as well as counter-designations by March 4.

And essentially, from March 11 to 18, we would be meeting and

conferring about those issues. I don't think, with this number

of depositions and this number of exhibits, setting one date to

meet and confer is realistic.

THE COURT: So the meet-and-confer would need to

occur on or before March 18?

MR. FORGE: Yes, Your Honor.

And then two weeks later, by April 1, plaintiffs would

provide the defendants with a draft trial order. The parties

would meet and confer again. And by April 8, we would submit

the pretrial order, pretrial conference order for the case, and

the hearing on April 15.

THE COURT: All right.

Ms. Stagg?

MS. STAGG: That's fine, Your Honor.

THE COURT: Mr. Petrocelli?

MR. PETROCELLI: Yes.

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Exhibit 1 15


1410-cv-00940-GPC-WVG

THE COURT: I think that makes sense.

MR. FORGE: Thank you, Your Honor.

THE COURT: Then with respect to a follow-up pretrial

conference, I think we would be looking at a date around June.

I don't know if I need to set that at this point, but just to

let you know, that's kind of what I think makes sense with an

August trial date. And then we would have motions in limine in

July, and then a trial date in August. So that would be the

plan moving forward.

MR. FORGE: Your Honor, I don't know if the Court

would -- if we want to tackle some of the issues and questions

Mr. Petrocelli raised, if we want to set up a schedule for that

now, we could work through concurrently.

What we are planning on doing is presenting the

disclosures and preparing this case for trial as we see it,

which is kind of along the lines of what Your Honor said:

Everything having to do with liability and taking it all the

way through damages with the named plaintiffs. That might not

wind up being the case. We might wind up doing something

differently. But we are going to do that.

THE COURT: Let me ask you, Mr. Forge, as to the case

in chief you will be presenting, do you have an estimate how

long it would take to present your case in chief?

MR. FORGE: I think two weeks, Your Honor. I think

two weeks. I was thinking three weeks for the whole trial in

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Exhibit 1 16


1510-cv-00940-GPC-WVG

terms of liability, I was thinking, so roughly two weeks.

THE COURT: Ms. Stagg, do you have any different view

on that?

MS. STAGG: Your Honor, we had originally said 15

days, which was three weeks, for the whole trial. So somewhere

in that vicinity I think is right.

THE COURT: I see that this case could be presented

between two and three weeks on the liability, which I think is

one of the benefits of bifurcation, is that we don't have to go

another week, or two or three, with the damages if we don't

need to.

All right. So I think that suggestion as far as other

dates to address issues Mr. Petrocelli identified -- rather

than I guess at this point etch it in stone, perhaps after

counsel gets moving on the disclosures, starts looking at the

issues, is able to identify a number of set issues that should

be addressed, perhaps before the pretrial conference or at

around the time of the pretrial conference. And to the extent

that the parties have dates in mind, I would be inclined to

grant those requests.

MR. FORGE: Okay. We will speak with counsel, and I

am sure that's something on which we can agree.

THE COURT: Yes. I am sure. So when it comes to

this, as a starting point, meet and confer; but then,

ultimately, by default, I will look at this and then see what

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Exhibit 1 17


1610-cv-00940-GPC-WVG

makes the most sense for everyone.


MR. PETROCELLI: Your Honor, it would be my thought

that, after going through the process you have described, if

there are issues that we believe need to be decided by the

Court, that we would be able to present those so that the Court

could consider them perhaps at the first pretrial conference?

THE COURT: On one hand, I am not looking to revisit

motions, motion for summary judgment, motion for class

decertification. At the same time, it may be, because of the

unique nature of this case, that almost two different motion in

limine hearing dates would be appropriate, one a month before,

which would relate to the evidentiary issues, and perhaps

another one at around the time of the pretrial conference, that

would look at some of the substantive issues.

So I am not promising you at this time that I will decide

any number of substantive issues if I believe it's kind of an

end run or trying to circumvent the Court's earlier rulings,

but I do agree that it makes sense to look at what we have and

identify potential problems so that we could avoid any issues

with the Ninth Circuit at some point in time.

MR. PETROCELLI: Very well, Your Honor.


THE COURT: Is there anything else to address at this

moment?

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Exhibit 1 18


1710-cv-00940-GPC-WVG

MR. FORGE: Not from plaintiffs, Your Honor.

Your Honor, would you like us to submit a proposed order

with those dates I described?

THE COURT: We will issue an order.


THE COURT: Anything else from anyone?

MS. STAGG: No. Thank you, Your Honor.

THE COURT: Thank you all for being here. And I will

see you soon.

(End of proceedings at 2:16 p.m.)

-o0o-

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Exhibit 1 19


18

C-E-R-T-I-F-I-C-A-T-I-O-N

I hereby certify that I am a duly appointed,

qualified and acting official Court Reporter for the United

States District Court; that the foregoing is a true and correct

transcript of the proceedings had in the aforementioned cause;

that said transcript is a true and correct transcription of my

stenographic notes; and that the format used herein complies

with rules and requirements of the United States Judicial

Conference.

DATED: December 9, 2015, at San Diego,

California.

/s/ Chari L. Possell _______________________________ Chari L. Possell CSR No. 9944, RPR, CRR

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Exhibit 1 20


EXHIBIT 2


1

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF CALIFORNIA

TARLA MAKAEFF, ET AL., ) 10-CV-0940-GPCPLAINTIFFS, )

)VS. ) SAN DIEGO, CA

) MARCH 11, 2016TRUMP UNIVERSITY, LLP, ET AL., ) 1:30 P.M.

DEFENDANTS. )

TRANSCRIPT OF MOTION HEARING

BEFORE THE HONORABLE GONZALO P. CURIEL

UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFFS: ROBBINS GELLAR RUDMAN & DOWD LLPBY: RACHEL L. JENSEN, ESQ.

JASON A. FORGE, ESQ.655 W. BROADWAY, SUITE 1900SAN DIEGO, CA 92101ANDZELDES HAEGGQUIST & ECK, LLPBY: AMBER L. ECK, ESQ.225 BROADWAY, SUITE 2050SAN DIEGO, CA 92101

FOR THE DEFENDANTS: O'MELVENY & MYERS LLPBY: DANIEL M. PETROCELLI, ESQ.

DAVID L. KIRMAN, ESQ.1999 AVENUE OF THE STARS, SUITE 700LOS ANGELES, CA 90067ANDTRUMP NATIONAL GOLF CLUB, LOS ANGELESBY: JILL A. MARTIN, ESQ.ONE TRUMP NATIONAL DRIVERANCHO PALOS VERDES, CA 90275

Exhibit 2 21


2

(APPEARANCES CONTINUED)

COURT REPORTER: FRANK J. RANGUS, OCRU. S. COURTHOUSE333 W. BROADWAY, SUITE 420SAN DIEGO, CA 92101(619) 318-8590

PROCEEDINGS RECORDED BY ELECTRONIC STENOGRAPHY; TRANSCRIPTPRODUCED BY COMPUTER.

Exhibit 2 22


3

I N D E X

PROCEEDINGS: PAGE

ARGUMENTS OF COUNSEL

MS. JENSEN 5

MR. PETROCELLI 15

MR. FORGE 31

MR. PETROCELLI 37

Exhibit 2 23


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4

THE DEPUTY CLERK: NUMBER FIVE ON CALENDAR, CASE

10-CV-0940, MAKAEFF VS. TRUMP UNIVERSITY, LLC, ET AL., FOR A

MOTION HEARING.

THE COURT: APPEARANCES.

MS. JENSEN: GOOD AFTERNOON, YOUR HONOR.

RACHEL JENSEN FOR PLAINTIFFS.

MR. FORGE: GOOD AFTERNOON, YOUR HONOR.

JASON FORGE FOR THE CLASS.

MS. ECK: AND, YOUR HONOR, AMBER ECK FOR THE

PLAINTIFFS.

THE COURT: GOOD AFTERNOON.

MR. PETROCELLI: GOOD AFTERNOON.

DANIEL PETROCELLI FOR THE DEFENDANTS.

MR. KIRMAN: GOOD AFTERNOON, YOUR HONOR.

DAVID KIRMAN FOR THE DEFENDANTS.

MS. MARTIN: GOOD AFTERNOON, YOUR HONOR.

JILL MARTIN FOR THE DEFENDANTS.

THE COURT: GOOD AFTERNOON TO YOU ALL.

WE ARE HERE ON PLAINTIFF MAKAEFF'S MOTION FOR

WITHDRAWAL. THE COURT HAS REVIEWED ALL THE PLEADINGS, AND I

HAVE SOME QUESTIONS THAT I WANTED TO POSE TO BOTH SIDES.

LET ME BEGIN WITH PLAINTIFF. WHO WILL BE ADDRESSING

THE QUESTIONS?

MISS JENSEN.

MS. JENSEN: YES, YOUR HONOR.

Exhibit 2 24


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5

THE COURT: ALL RIGHT. SO IT'S MY UNDERSTANDING THAT

THE NINTH CIRCUIT HAS RULED THE DISTRICT COURT SHOULD GRANT A

MOTION FOR VOLUNTARY DISMISSAL UNDER RULE 41 UNLESS THE COURT

FINDS THAT THE DEFENDANT WILL SUFFER SOME LEGAL PREJUDICE AS A

RESULT, AND AS I UNDERSTAND THE POSITION OF THE PLAINTIFF, THE

PLAINTIFF SAYS THE DEFENDANT WON'T SUFFER ANY LEGAL PREJUDICE.

HOWEVER, ONE OF THE CASES THAT'S TAKEN UP THIS ISSUE

IS BP WEST COAST PRODUCTS LLC, AND ONE OF THE FACTORS THAT WAS

TAKEN INTO ACCOUNT WHETHER OR NOT THERE WAS IN FACT LEGAL

PREJUDICE IS WHETHER THE CLAIMS HAVE BEEN EXTENSIVELY

LITIGATED. YOU WOULDN'T DISPUTE THAT IN THIS CASE THE CLAIMS

OF MISS MAKAEFF HAVE BEEN EXTENSIVELY LITIGATED.

MS. JENSEN: YES, YOUR HONOR. WE WOULD NOT DISPUTE

THAT THE CLAIMS HAVE BEEN EXTENSIVELY LITIGATED. HOWEVER, OUR

POSITION IS THAT THE DEFENDANTS WOULD NOT SUFFER ANY LEGAL

PREJUDICE BECAUSE THE CLASS CLAIMS THAT WILL BE PROCEEDING FOR

THE LIABILITY PHASE OF TRIAL WILL FOCUS, WILL FOCUS

EXCLUSIVELY ON THE DEFENDANTS' FALSE OR MISLEADING

ADVERTISEMENTS, THEIR MISREPRESENTATIONS, MATERIAL OMISSIONS,

AND WHETHER THEY WERE LIKELY TO DECEIVE THE GENERAL PUBLIC.

AND SO, THEREFORE, THE DEFENDANTS' CLAIM OF LEGAL PREJUDICE IS

INCORRECT BECAUSE IT APPLIES ONLY TO WHAT THEY'RE SEEKING TO

DISCREDIT MISS MAKAEFF ON ON HER DAMAGES, AND THAT IS NOT

GOING TO BE AN ISSUE AS A CLASS --

THE COURT: DON'T THEY ALSO RAISE THE ISSUE OF

Exhibit 2 25


omm18111

Highlight

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RELIANCE?

MS. JENSEN: YES, YOUR HONOR. UNDER CALIFORNIA LAW

AND IN RE TOBACCO, ALL THAT IS REQUIRED IS THAT SHE, THAT THE

INJURY WAS CAUSED, THE SUBSTANTIAL FACTOR OF THAT INJURY WAS

THE FALSE ADVERTISING AND THE REPRESENTATIONS THAT WERE MADE.

NOW, THE DEFENDANT --

THE COURT: DOES THAT ALSO APPLY TO A CRLA CLAIM?

MS. JENSEN: SO, UNDER THE CLRA, FOR THE CLASS

CLAIMS, IT IS A PRESUMPTION OF RELIANCE THAT ARISES IF THE

REPRESENTATIONS ARE MATERIAL, AND THAT IS ADJUDGED BY AN

OBJECTIVE STANDARD, NOT MISS MAKAEFF'S SUBJECTIVE STANDARD.

AND HERE, THEY WON'T BE PREJUDICED AT ALL BECAUSE, IF

ANYTHING, IT'S ONE LESS PERSON THAT WILL HAVE TO PROVE

RELIANCE. HERE, WE'VE GOT SONNY LOW, WHO WAS APPOINTED BY

YOUR HONOR AS A CLASS REPRESENTATIVE AT THE VERY SAME TIME

THAT MISS MAKAEFF WAS APPOINTED AS CLASS REPRESENTATIVE, AND

SO --

THE COURT: WAS HE ORIGINALLY APPOINTED AS CLASS

REPRESENTATIVE FOR ALL OF THE CALIFORNIA CAUSES OF ACTION,

INCLUDING THE ELDER ABUSE?


THE COURT: SO HE WASN'T JUST APPOINTED ON THE ELDER

ABUSE.

MS. JENSEN: CORRECT.

AND SO, YOUR HONOR, IF ANYONE WERE TO SUFFER LEGAL

Exhibit 2 26


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PREJUDICE, IT WOULD BE THE PLAINTIFFS, BECAUSE WE WOULD HAVE

ONE LESS CLASS REPRESENTATIVE TO DO SO. BUT SONNY LOW WILL BE

APPEARING AT TRIAL. HE WILL BE THE CLASS REPRESENTATIVE FOR

THE CALIFORNIA CLAIMS, AND THE DEFENDANTS WILL SUFFER NO LEGAL

PREJUDICE IN TERMS OF SONNY LOW, HIS CLASS CLAIMS, BECAUSE

THEY'VE HAD AMPLE OPPORTUNITY TO TAKE HIS DISCOVERY, AND, AS

YOUR HONOR IS AWARE, THIS CASE HAS BEEN FULLY, FULLY VETTED IN

TERMS OF DISCOVERY OF THE FACTS, WITH A DISCOVERY CUTOFF OF

MARCH 20.

THE COURT: LET ME ASK YOU SOMETHING. THE DEFENDANTS

ARGUE THAT THEIR DISCOVERY STRATEGY HAS BEEN NOT DESTROYED,

BUT IT'S BEEN ADVERSELY AFFECTED BECAUSE IN THIS CASE THEY PUT

ALL THEIR EGGS IN THE MAKAEFF BASKET, IF NOT ALL OF THEIR

EGGS, MOST OF THEIR EGGS, AND THAT THEY DIDN'T PROCEED OR

PURSUE MR. LOW IN THE SAME MANNER. WHAT WOULD BE YOUR

POSITION WITH RESPECT TO THE COURT ORDERING FURTHER

DEPOSITIONS OF MR. LOW IN ORDER TO CURE ANY POSSIBLE PREJUDICE

THAT MAY ARISE WITH RESPECT TO THE DISCOVERY?

MS. JENSEN: WELL, YOUR HONOR, WHAT I CAN SAY IS THAT

THE DEFENDANTS HAVE HAD OPPORTUNITY TO TAKE MR. LOW'S FULL

DISCOVERY. I DON'T HAVE THE NUMBER OF DOCUMENTS THAT HE'S

PRODUCED IN THIS MATTER, BUT I CAN TELL YOU IT'S VOLUMINOUS.

THEY'VE ALSO HAD AN OPPORTUNITY TO TAKE A FULL DAY'S

DEPOSITION OF HIM, AND THEY'VE ALSO ASKED HIM INTERROGATORIES,

REQUESTS FOR ADMISSION.

Exhibit 2 27


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SO THEY HAVE HAD AMPLE OPPORTUNITY, AND WE BELIEVE

THAT IF THEY ARE MAKING THAT ARGUMENT, IT REALLY IS PRETEXT

BECAUSE, AS YOUR HONOR CAN SEE, THAT WHAT THEY'RE TRYING TO DO

WITH MISS MAKAEFF IS TO DISTRACT THE COURT AND THE JURY FROM

THE REAL ISSUES AT HAND BY CASTING ASPERSIONS ON HER

CHARACTER, AND THEY REALLY FOCUS ALL THEIR FIREPOWER ON HER,

WHEREAS SHE IS ONLY ONE OF FOUR CLASS REPRESENTATIVES, AND THE

REAL TELL HERE IS THAT SHE DOESN'T EVEN REPRESENT FLORIDA OR

NEW YORK CLASS MEMBERS.

SO WE DON'T REALLY THINK THERE'S ANY LEGAL PREJUDICE.

AGAIN, IF ANYONE SUFFERS PREJUDICE, IT'S OURS, BECAUSE NOW

WE'RE LEFT WITH ONE CLASS REPRESENTATIVE WHO WE'LL HAVE TO PUT

ALL OF OUR EGGS IN THAT BASKET, AND THE DEFENDANTS HAVE KNOWN

ABOUT SONNY LOW ALL ALONG.

THE COURT: ONE OF THE POINTS THAT THE DEFENSE -- I'M

SORRY -- THAT THE PLAINTIFF MAKES WITH RESPECT TO POSSIBLE

PREJUDICE BY MISS MAKAEFF NOT CONTINUING AS A REPRESENTATIVE

IS THAT MISS MAKAEFF'S DEPOSITION COULD BE RELIED UPON BY THE

DEFENSE TO AN EXTENT OTHERWISE INADMISSIBLE. ARE YOU FAMILIAR

WITH ANY CASE WHERE THAT'S ACTUALLY OCCURRED, WHERE A FORMER

NAMED CLASS MEMBER HAS HAD THEIR DEPOSITION OFFERED AT TRIAL?

MS. JENSEN: SO WHAT I CAN DIRECT YOUR HONOR'S

ATTENTION TO IS JUDGE HOUSTON'S RECENT ORDER IN THE MORNING

SONG CASE, IN WHICH A CLASS MEMBER WAS WITHDRAWN, AND JUDGE

HOUSTON SAID, TO THE EXTENT THAT IT'S RELEVANT, THEY'VE GOT

Exhibit 2 28


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THAT DEPOSITION. AND THERE ARE OTHER CASES AS WELL THAT WE

CITE IN OUR PAPERS WHERE THE COURT SAID IT'S NOT LEGAL

PREJUDICE IF YOU'VE GOT THE DEPOSITION.

NOW, IT REMAINS TO BE SEEN HOW THE COURT AND THE

PARTIES WILL WORK OUT WHICH EVIDENCE COMES IN THE TRIAL, AND

AS YOUR HONOR IS AWARE, WE HAVE OUR FINAL PRETRIAL CONFERENCE

COMING UP IN A MATTER OF SOME WEEKS. BUT WHAT IS IMPORTANT

HERE IS THAT THERE'S NO SUBSTANTIVE DIFFERENCE. IF THEIR

POINT IS THEY WANT TO TAKE THE TACK OF DESTROYING MISS MAKAEFF

ON THE WITNESS STAND, THAT IS NOT LEGAL PREJUDICE. THEY'VE

GOT FOUR VOLUMES OF DEPOSITION TESTIMONY. IF YOUR HONOR DEEMS

IT RELEVANT, THEY CAN USE THAT.

THE COURT: ALL RIGHT. THE PLAINTIFF HAS MADE A

NUMBER OF MOTIONS. ONE IS TO WITHDRAW, AND ONE IS TO ENTER

PARTIAL JUDGMENT WITH RESPECT TO THE SLAPP, AND THEN ONE TO

BASICALLY PROHIBIT THE DEFENDANT FROM PURSUING ATTORNEY FEES

IN AN ACTION BASED UPON THE MOTION TO WITHDRAW. LET ME ASK,

TO THE EXTENT THAT THE COURT WERE PREPARED TO GRANT A MOTION

TO WITHDRAW WITHOUT GRANTING THE ADDITIONAL RELIEF THAT IS

BEING SOUGHT BY MISS MAKAEFF, WOULD THAT AFFECT HER DESIRE TO

OBTAIN WITHDRAWAL?

MS. JENSEN: SO, YOUR HONOR, HER REQUEST IS TO

WITHDRAW WITHOUT PREJUDICE ONLY WITH RESPECT TO HER RIGHTS AS

AN ABSENT CLASS MEMBER. THE PROPOSED ORDER THAT WE SUBMITTED

TO THE COURT MAKES THAT ABUNDANTLY CLEAR. SO IT'S WITH

Exhibit 2 29


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PREJUDICE IN EVERY OTHER WAY. SO, IN OTHER WORDS, MISS

MAKAEFF CAN'T GO OUT AND FILE ANOTHER --

THE COURT: RIGHT. NO, I UNDERSTAND THAT.

MS. JENSEN: AND SO SHE WOULD ONLY REMAIN AN ABSENT

CLASS MEMBER, AND THE DEFENDANTS HAVE ALREADY STIPULATED TO

HER BEING ABLE TO PARTICIPATE AS A COHEN CLASS MEMBER BACK

WHEN SHE DISMISSED SOME OF HER INDIVIDUAL CLAIMS. SO THAT'S

ALREADY BEEN STIPULATED TO. YOUR HONOR HAS ALREADY ENTERED

THAT ORDER, AND ALL WE WOULD WISH TO DO IS TO PRESERVE HER

RIGHTS AS AN ABSENT CLASS MEMBER AND, OF COURSE, ANY RIGHTS

THAT SHE MAY HAVE AS TO THE SLAPP JUDGMENT.

THE COURT: WELL, AND THEN THERE'S ALSO A REQUEST,

ISN'T THERE, TO ENTER THE JUDGMENT? CORRECT?


THE COURT: ON THE SLAPP. AND THEN TO PRECLUDE THE

DEFENDANTS FROM SEEKING ATTORNEY FEES OR PURSUING A MALICIOUS

PROSECUTION CLAIM BASED UPON THE MOTION TO WITHDRAW. CORRECT?

MS. JENSEN: YES, YOUR HONOR. AND ESSENTIALLY

ANOTHER ISSUE IS THAT COURTS DO AND YOUR HONOR HAS ALLOWED

VOLUNTARY DISMISSAL, SUCH AS IN THE SHERMAN V. YAHOO CASE,

WITHOUT PREJUDICE ALONG THESE SAME LINES AND DENIED ATTORNEY'S

FEES AND COSTS. NOW --

THE COURT: WELL, THE SHERMAN CASE WAS DIFFERENT.

MS. JENSEN: -- THERE COULD POTENTIALLY BE -- I'M

SORRY.

Exhibit 2 30


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THE COURT: SHERMAN WAS DIFFERENT IN THE SENSE THAT

THE SHERMAN REQUEST TO WITHDRAW OCCURRED FAR BEFORE ANY REAL

SUBSTANTIVE MOTIONS. AS I RECALL, IT OCCURRED BEFORE THE

MOTION TO CERTIFY WAS FILED AND BEFORE THE MOTION FOR SUMMARY,

WELL, THE FINAL MOTION FOR SUMMARY JUDGMENT, AND SO THE

DISCOVERY WAS STILL UNDER WAY, AND THERE IT APPEARED THAT

THERE MAY HAVE BEEN SOME GAMESMANSHIP, PERHAPS, TO AVOID A

DEPOSITION OF MR. SHERMAN.

SO THERE I GRANTED THE REQUEST TO WITHDRAW, BUT I

ATTACHED CONDITIONS, AND THAT'S ONE OF THE THINGS THAT I'M

WONDERING IN THIS CASE WHETHER OR NOT, IF THE COURT DID GRANT

THE MOTION TO WITHDRAW, WHETHER OR NOT IT SHOULD IMPOSE OR

ATTACH CERTAIN CONDITIONS, SUCH AS ATTORNEY FEES, AND EVEN IF

I WEREN'T TO TAKE THOSE UP AT THIS TIME AND DEFER THEM UNTIL A

LATER POINT IN TIME, WHETHER OR NOT THAT WOULD BE APPROPRIATE.

WHAT'S YOUR RESPONSE TO THAT?

MS. JENSEN: SO, YOUR HONOR, AND JUST TO ADDRESS YOUR

HONOR'S PRIOR POINT ABOUT THE PROPOSED ORDER, WHAT WE'RE

REALLY SEEKING IS JUST FOR THE PARTIES TO BEAR THEIR OWN FEES

AND COSTS, WHICH IS WHAT YOU JUST HIT ON. YOUR HONOR, TO THE

EXTENT THAT THERE ARE ANY COSTS THAT ARE TRULY UNIQUE TO MISS

MAKAEFF AND NOT RELATED TO THE SLAPP ACTION, WE WOULD BE

WILLING TO MEET AND CONFER WITH THE DEFENSE ABOUT THOSE.

BUT AGAIN, AS TO ATTORNEY'S FEES, THE CASE IS A CLASS

ACTION, AND VIRTUALLY ALL THE WORK IN THIS CASE HAS BEEN THE

Exhibit 2 31


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CLASS CLAIMS, AND SO WE DON'T THINK IT'S AN APPROPRIATE CASE

FOR ATTORNEY'S FEES. BUT AGAIN, IF THERE WERE SOME OFFSET OF

COSTS THAT NEEDED TO BE DISCUSSED AMONG THE PARTIES, WE WOULD

BE, WE WOULD BE WILLING AND ABLE TO DO THAT.

THE COURT: ALL RIGHT. AND ONE OF THE BASES OF THE

DEFENDANTS' ARGUMENT RELATING TO LEGAL PREJUDICE WAS THAT IN

THE EVENT THAT MISS MAKAEFF HAD NOT BEEN A CLASS

REPRESENTATIVE, THAT THE COURT WOULD HAVE SOMEHOW RULED

DIFFERENTLY ON ONE OR MORE MOTIONS. HOW DO YOU RESPOND?

MS. JENSEN: YOUR HONOR, I HAVE TO SAY THAT I

SCRATCHED MY HEAD WHEN I READ THAT, BECAUSE, AGAIN, MISS

MAKAEFF IS ONLY ONE OF FOUR CLASS REPRESENTATIVES AND ONLY ONE

OF TWO CALIFORNIA REPRESENTATIVES. SO THERE'S ALWAYS BEEN

OTHER PLAINTIFFS IN THIS CASE. THIS CASE IS REALLY ABOUT A

FRAUDULENT SCHEME, AND FOR PURPOSES OF THE CALIFORNIA CLAIMS,

IT FOCUSES ON THE DEFENDANTS' ACTIONS.

SO, WERE THE REPRESENTATIONS FALSE? WERE THEY NOT?

NONE OF THESE ISSUES HAVE ANYTHING TO DO WITH MISS MAKAEFF,

AND SO WE DON'T THINK THAT ANY OF THE RULINGS WOULD HAVE BEEN

DIFFERENT, AND IT'S REALLY, I THINK, TELLING BECAUSE THERE

WERE OTHER CLASS REPRESENTATIVES AND THEY ARE STILL STANDING

AS WELL.

THE COURT: ALL RIGHT. AND THEN LET ME ASK YOU ONE

LAST QUESTION, OR LAST SET OF QUESTIONS. I ASKED PLAINTIFFS'

COUNSEL TO PROVIDE TO THE COURT IN CAMERA CERTAIN MEDICAL

Exhibit 2 32


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RECORDS THAT WOULD CORROBORATE, SUBSTANTIATE MISS MAKAEFF'S

ASSERTIONS THAT SHE HAS SUFFERED PHYSICALLY AND MENTALLY DUE

TO THE STRESS CREATED BY THIS ACTION, DUE TO THE APPREHENSION

CREATED DURING THE COURSE OF THESE PROCEEDINGS, AND I KNOW

THAT YOU ASKED FOR IT TO BE AN IN CAMERA SUBMISSION. MY

QUESTION IS: DO YOU HAVE ANY OBJECTION TO THE DEFENSE BEING

ALLOWED TO REVIEW IT ALONG WITH THE COURT IN CHAMBERS WITH

PLAINTIFFS' COUNSEL ALSO PRESENT?

MS. JENSEN: YES, YOUR HONOR. THE COURT'S MARCH 9TH

ORDER SUGGESTED OR ORDERED US TO BRING THE DOCUMENTATION FOR

THE COURT'S REVIEW. WE INTERPRETED THAT ORDER TO BE IN LINE

WITH OUR OFFER, WHICH WAS THAT IT WOULD BE IN CAMERA, AND

BECAUSE IT --

THE COURT: AND IN CAMERA BEING THAT IT WOULD

EXCLUSIVELY BE FOR THE COURT --


THE COURT: -- AND NOT TO BE SHARED WITH THE DEFENSE

ATTORNEYS.

MS. JENSEN: SO, UNFORTUNATELY, I DON'T HAVE ANY

AUTHORIZATION FROM MY CLIENT, WHOSE SENSITIVE MEDICAL HISTORY

IS INCLUDED IN THOSE DOCUMENTS, TO PROVIDE ANY FURTHER

DISTRIBUTION THAN JUST THE COURT.

THE COURT: ALL RIGHT. AND IT MAY BE THAT I'LL ASK

YOU TO DETERMINE WHETHER OR NOT THERE'S ANY PORTION OF THIS

THAT YOUR CLIENT WOULD BE AGREEABLE TO MAKE AVAILABLE FOR

Exhibit 2 33


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INSPECTION BY DEFENSE COUNSEL IN THIS, AND THEN, IN ADDITION,

TO THE EXTENT THAT SHE WOULD NOT BE WILLING TO MAKE ANY

PORTION OF THESE RECORDS AVAILABLE, WHETHER OR NOT THE COURT

CAN TAKE THESE RECORDS INTO ACCOUNT IN CAMERA WITHOUT

PROVIDING THE BENEFIT OF OR WITHOUT GIVING THE OPPORTUNITY TO

INSPECT TO THE DEFENSE.

MS. JENSEN: UNDERSTOOD, YOUR HONOR.

THE COURT: ALL RIGHT. THANK YOU.

MS. JENSEN: COULD I ADDRESS JUST ONE MORE POINT?

THE COURT: YES.

MS. JENSEN: AND THAT IS THAT I THINK INTERRELATED

WITH YOUR QUESTION ABOUT THE STAGE OF THE PROCEEDINGS, I

WANTED TO ADDRESS THE ISSUE OF WHY NOW? WHY AT THIS TIME?

AND, YOUR HONOR, WITHIN A FEW WEEKS OF YOUR ISSUING THE

SCHEDULING ORDER LATE LAST FALL, WE APPROACHED THE DEFENSE TO

ASK THEM ABOUT MISS MAKAEFF, BECAUSE SHE MADE IT CLEAR THAT,

UNDER THE CIRCUMSTANCES THAT WE FACE RIGHT NOW, SHE WAS UNABLE

TO CONTINUE FOR HEALTH REASONS. MR. PETROCELLI'S INITIAL

RESPONSE WAS, I DON'T SEE A PROBLEM. I'LL ADVISE MY CLIENT TO

ALLOW IT. AND NOW WE SEE THIS RESPONSE IN THE BRIEFING.

BUT I WANTED TO MAKE ONE POINT, AND THAT IS THAT THIS

MOTION AND THIS CASE OBVIOUSLY INVOLVES HUMANS AND HUMAN

CONDITIONS AND HUMAN EMOTIONS, AND I DON'T THINK ANYBODY COULD

HAVE ANTICIPATED A YEAR AGO WHERE WE WOULD FIND OURSELVES.

AND MISS MAKAEFF HAS NOT ONLY SUFFERED THROUGH A

Exhibit 2 34


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MILLION-DOLLAR COUNTERCLAIM THAT WAS DIRECTED BY MR. TRUMP

PERSONALLY, BUT SHE'S NOW BEEN DERIDED AND CALLED OUT BY NAME

ON THE CAMPAIGN TRAIL, ON TWITTER, AND EVEN ON THE GOP

PRESIDENTIAL STAGE.

I DON'T THINK THAT MISS MAKAEFF SIGNED UP FOR THAT.

AND EVEN IF SOMEONE COULD HAVE SAID, OH, WELL, HE HAS

POLITICAL ASPIRATIONS, I DON'T THINK EVEN THE MOST BRILLIANT

POLITICAL MIND COULD HAVE ANTICIPATED WE WOULD BE WHERE WE

ARE, WITH THE VERY REAL POSSIBILITY IF THIS CASE GOES TO TRIAL

DURING THE ELECTION, AND MISS MAKAEFF SIMPLY HAS BEEN PUT

THROUGH TOO MUCH, AND SO WE WOULD RESPECTFULLY REQUEST THAT

THE COURT ALLOW HER TO WITHDRAW.

THE COURT: ALL RIGHT. THANK YOU.

MR. PETROCELLI.

LET ME ASK YOU AS A STARTING POINT, IN YOUR PAPERS

YOU PROVIDED THE COURT WITH A NUMBER OF CASES WHERE A PARTY

WAS NOT ALLOWED TO SUBSTITUTE SOMEONE ELSE IN THEIR PLACE.

YOU HAVE CASES THAT RELY UPON RULE 15 AND RULE 16. DO YOU

HAVE ANY CASE THAT WAS DECIDED IN THE NINTH CIRCUIT ADDRESSING

A RULE 41 MOTION TO WITHDRAW WHERE WITHDRAWAL WAS DENIED?

MR. PETROCELLI: OFF THE TOP OF MY HEAD, YOUR HONOR,

I CAN'T ANSWER THAT QUESTION. I WOULD HAVE TO REVIEW OUR

BRIEF. I WILL SAY THAT I DO NOT BELIEVE WE HAVE SEEN ANY

CASES WHERE WITHDRAWAL WAS PERMITTED, ESPECIALLY ON THIS

UNCONDITIONAL BASIS THAT'S BEEN REQUESTED SIX YEARS INTO A

Exhibit 2 35


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CASE, WHERE ALL THAT REMAINS IS THE COMPLETION OF TRIAL

PREPARATION AND TRIAL.

YOUR HONOR CORRECTLY SET OUT THE LAW, IN MY VIEW, IN

THE SHERMAN VS. YAHOO CASE IN WHICH YOU WENT THROUGH THE

THREE-PART INQUIRY IN DEALING WITH THE CASE THAT WAS, AS YOU

POINTED OUT, IN A MUCH EARLIER STAGE OF LITIGATION, BEFORE THE

CLASS CERTIFICATION, BEFORE MR. SHERMAN WANTED TO WITHDRAW

WITHOUT PREJUDICE AND YOUR HONOR ALLOWED THAT TO HAPPEN,

POINTING OUT THAT IT WAS VERY EARLY ON IN THE CASE, AND ALSO

CONDITIONING IT ON A DEPOSITION OF MR. SHERMAN IN ORDER TO

MITIGATE AGAINST ANY PREJUDICE, AND AT THE END OF THE DAY THIS

WHOLE ANALYSIS IS ABOUT PREJUDICE AND WHETHER --

THE COURT: THE THING ABOUT THAT, HOW ARE YOU

PREJUDICED BY THIS?

MR. PETROCELLI: YOUR HONOR, HONESTLY, I DON'T THINK

I'VE SEEN A CASE ANYTHING CLOSE TO THIS LEVEL AND MAGNITUDE OF

THE DEPTH OF PREJUDICE, AND LET ME EXPLAIN WHY. WE HAVE BEEN

PREJUDICED BACKWARDS; WE HAVE BEEN PREJUDICED FORWARDS.

ON BACKWARDS, YOUR HONOR, MISS MAKAEFF WASN'T JUST

ONE OF A NUMBER OF FOLKS WHOSE EVIDENCE AND WHOSE ARGUMENTS

AND WHOSE CLAIMS WERE PROFFERED TO THE COURT. SHE WAS THE

FIRST PLAINTIFF, THE LEAD PLAINTIFF, DESPITE OTHER CLASS

REPRESENTATIVES COMING IN AND OUT ALL DURING THE SIX YEARS.

SHE REMAINED CONSTANT THROUGHOUT. AND IF YOU GO BACK AND

REVIEW THE BRIEFING ON THE MOTION TO DISMISS, WHICH YOUR HONOR

Exhibit 2 36


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DENIED, ON THE MOTION THAT THEY FILED FOR CERTIFICATION, WHICH

YOUR HONOR GRANTED, ON THE MOTION FOR SUMMARY JUDGMENT THAT WE

FILED, WHICH YOUR HONOR DENIED, ON THE MOTION FOR --

THE COURT: BY THE WAY, WAS I THE JUDGE THAT DENIED

THE MOTION TO DISMISS?

MR. PETROCELLI: YOU KNOW WHAT? YOU'RE CORRECT.

THE COURT: IT WAS JUDGE GONZALEZ.

MR. PETROCELLI: IT WAS JUDGE GONZALEZ. THAT'S

CORRECT, AND I DIDN'T MEAN TO PERSONALIZE IT TO YOUR HONOR.

THE COURT.

THE COURT: ALL RIGHT.

MR. PETROCELLI: OKAY? THANK YOU FOR THAT

CLARIFICATION.

AND ALSO THE MOTION TO DECERTIFY AS TO LIABILITY,

WHICH WAS DENIED BY THE COURT, ALTHOUGH GRANTED AS TO DAMAGES.

IF YOU GO BACK, AND WE HAVE, YOUR HONOR, AND YOU REVIEW THE

BRIEFING, IT'S ALL A MATTER OF RECORD. MISS MAKAEFF'S

EVIDENCE, MISS MAKAEFF'S DEPOSITION, MISS MAKAEFF'S

DECLARATION, AND MISS MAKAEFF'S INDIVIDUAL CLAIMS WERE THE

PILLAR OF THE POSITIONS ADVANCED BY THE PLAINTIFFS TO SECURE

DECISIVE COURT RULINGS IN THEIR FAVOR.

THE COURT: LET ME ASK YOU ABOUT THAT.

MR. PETROCELLI: PLEASE.

THE COURT: ULTIMATELY, THE COURT IDENTIFIED THREE

CORE REPRESENTATIONS, OR MISREPRESENTATIONS --

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MR. PETROCELLI: CORRECT.

THE COURT: -- INVOLVING --

MR. PETROCELLI: FOR, FOR CERTIFICATION.

THE COURT: RIGHT. AND SO THE FIRST ONE WAS WITH

RESPECT TO TRUMP UNIVERSITY --


THE COURT: -- WHETHER OR NOT IT WAS AN ACCREDITED

UNIVERSITY. WITH RESPECT TO THAT PARTICULAR CORE

MISREPRESENTATION, IT'S NOT NECESSARY TO HAVE MISS MAKAEFF

TESTIFY AT TRIAL IN ORDER FOR THE DEFENSE TO PROPERLY OR BE

FAIRLY ABLE TO DEFEND AGAINST THAT CLAIM.

MR. PETROCELLI: WELL, YOUR HONOR, YOU COULD SAY

THAT, I SUPPOSE, ABOUT ALL OF THEM, BUT I DON'T THINK THAT'S

THE PROPER ANALYSIS. THAT WAS, THAT WAS THE PERSON AND THE

EVIDENCE THAT WAS THE CENTERPIECE OF THIS LITIGATION. THAT'S

THE CASE WE'VE BEEN LITIGATING, AND NOW, SIX YEARS LATER, WHEN

ALL THAT REMAINS FOR HER TO CARRY OUT HER FINAL DUTIES AS THE

CLASS REPRESENTATIVE IS TO SHOW UP IN TRIAL FOR ONE OR TWO

DAYS AND TESTIFY, SHE WANTS TO BAIL. THERE'S ABSOLUTELY NO

BASIS FOR THAT, YOUR HONOR.

THE COURT: ALL RIGHT. YOU SAID THERE'S NO BASIS

WHATSOEVER --


THE COURT: -- FOR MISS MAKAEFF. I MEAN, ARE YOU

SERIOUS, THERE'S NO BASIS?

Exhibit 2 38


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MR. PETROCELLI: WELL, YOUR HONOR, LET'S TALK ABOUT

WHAT SHE'S ADVANCED. OKAY? SHE SAYS THAT "I DON'T WANT THE

PUBLICITY." SHE STARTED THE PUBLICITY, YOUR HONOR. SHE WAS

VERY ACTIVE PUBLICLY EVEN BEFORE THIS CASE WAS FILED, AND

THROUGHOUT THE CASE WAS VERY PUBLIC IN GIVING INTERVIEWS ABOUT

THE CASE, AND YOU SAW THE RECORD ON THAT.

SECONDLY, YOUR HONOR --

THE COURT: BUT THROUGH 2012, I BELIEVE, WAS THERE

MUCH, WAS THERE MUCH IN TERMS OF THIS CAMPAIGN FOLLOWING 2012?

MR. PETROCELLI: MY RECOLLECTION IS, MY

UNDERSTANDING, I SHOULD SAY, IS, UNTIL ABOUT A COUPLE WEEKS

AGO, YOUR HONOR, THIS WAS RELATIVELY QUIET AND WASN'T ON THE

RADAR, AND THEN ALL OF A SUDDEN IT SHOWS UP IN PRESIDENTIAL

CAMPAIGNS, WITH BRIEFS FILED BY THE PLAINTIFFS A DAY BEFORE

THE FILING ON THE DAY OF THE NATIONAL DEBATES AND QUESTIONS

BEING ASKED BY THE MEDIA TAKEN FROM THE BRIEFS, YOUR HONOR,

DEPOSITIONS BEING FILED AS A MATTER OF RECORD WHEN THERE'S NO

NEED TO FILE THEM. YOU SEE THE REPLY SUBMISSION IN THIS CASE.

IT HAS VIRTUALLY NOTHING TO DO, IT HAS NOTHING TO DO, YOUR

HONOR, WITH THE ISSUES IN THIS CASE.

THE COURT: BUT THAT SUGGESTS THAT THIS IS A CASE

THAT'S OUT OF THE NORM. CORRECT? THIS IS A UNIQUE CASE.

MR. PETROCELLI: FOR SURE, THE CASE IS OUT OF THE

NORM. THIS CASE IS OUT OF THE NORM, YOUR HONOR. BUT, YOU

KNOW, SIX YEARS LATER, AFTER SHE HAS BEEN THE PILLAR OF THEIR

Exhibit 2 39


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CASE AND OUR DEFENSE, OUR DISCOVERY DECISIONS, THE WAY THE

DEPOSITIONS THAT WERE TAKEN, THE DEPOSITIONS THAT WERE NOT

TAKEN, THE EMPHASIS ON THE DEPOSITIONS.

THE COURT: WELL, LET ME ASK YOU THIS. WHICH

DEPOSITIONS WEREN'T TAKEN?

MR. PETROCELLI: WELL, IF SHE HAD NOT BEEN IN THE

CASE, YOUR HONOR, PUTTING ASIDE WHETHER YOU WOULD HAVE OR

ANOTHER JUDGE WOULD HAVE RULED DIFFERENTLY ON THOSE MOTIONS,

OTHER CALIFORNIA CLASS MEMBERS MIGHT HAVE BEEN SOUGHT TO BE

DEPOSED. RIGHT NOW, THERE'S ONLY A COUPLE HUNDRED PAGES FROM

MR. LOW AND --

THE COURT: ALL RIGHT, LET ME ASK YOU, IF THE COURT

WERE TO PERMIT MISS MAKAEFF TO WITHDRAW WITH THE CONDITION OF

FURTHER DEPOSITION OF MR. LOW, HOW WOULD YOU BE DENIED --

MR. PETROCELLI: YOUR HONOR, WE GO FAR BEYOND, IN OUR

VIEW, GETTING ANOTHER DAY. WE WOULD (A) NEED TO REVISIT ALL

THE PRIOR RULINGS THAT THE COURT HAS MADE TO SEE WHETHER AND

TO WHAT, WHETHER THEY HAVE BEEN ADVERSELY IMPACTED BY MISS

MAKAEFF'S DISMISSAL OF HER CLAIMS. SHE'S ASKING FOR HER

CLAIMS TO BE DISMISSED, WHICH MEANS THAT EVIDENCE THAT WAS

PREVIOUSLY SUBMITTED IS OF NO CONSEQUENCE ANYMORE, AND IT

CAN'T BE HEADS, I WIN; TAILS, YOU LOSE. THEY GET TO USE THE

EVIDENCE TO SECURE KEY LEGAL RULINGS AND THEN, WHEN IT COMES

TIME TO PROVE THE CASE IN COURT, SHE WANTS TO DROP OUT OF THE

CASE. THAT'S JUST FUNDAMENTALLY WRONG, YOUR HONOR.

Exhibit 2 40


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AND THE OTHER ISSUES WHEN YOU CHALLENGED ME ON NO

BASIS WHATSOEVER, SHE TALKED ABOUT THE PUBLICITY. SHE TALKED

ABOUT THE MEDICAL REASONS. WE HAVE NO VISIBILITY INTO THAT.

WE ASKED OPPOSING COUNSEL RIGHT BEFORE THE HEARING BEGAN TO

LET US SEE THESE RECORDS. THERE'S A PROTECTIVE ORDER.

THERE'S EVEN AN ATTORNEY'S-EYES-ONLY PROVISION. WE'VE BEEN

DENIED ACCESS TO THAT. SO, I MEAN, I HAVE NO BASIS TO JUDGE

HER MEDICAL REASONS, AND AS YOUR HONOR WELL KNOWS, PEOPLE WHO

ARE VERY ILL, EXTREMELY ILL, ARE REQUIRED TO TESTIFY IN COURT

CASES ALL THE TIME.

THE COURT: BUT YOU'D HAVE TO CONFESS THAT THIS IS A

LITTLE BIT DIFFERENT FROM THE TYPICAL CASE WHERE YOU TALK

ABOUT THE GLARE OF THE MEDIA.

MR. PETROCELLI: THE PUBLICITY, YOUR HONOR.

THE COURT: RIGHT.

MR. PETROCELLI: YES, YOUR HONOR, PUBLICITY THAT WE

DID NOT, UNTIL RECENTLY, WE DID NOT BRING AND WHICH, I

SUGGEST, HAS BEEN FUELED BY OPPOSING FORCES, NOT --

THE COURT: NOT MISS MAKAEFF.

MR. PETROCELLI: EXCUSE ME?

THE COURT: MISS MAKAEFF. NOT MISS MAKAEFF.

MR. PETROCELLI: I DON'T KNOW, YOUR HONOR.

THE COURT: DO YOU HAVE ANY PROOF?

MR. PETROCELLI: ALL I CAN TELL YOU IS THAT I READ

TODAY IN THE NEW YORK TIMES THAT AN EXPERT HIRED BY THE

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PLAINTIFFS, NEVER DISCLOSED TO US, IS GIVING COMMENTS ADVERSE

TO OUR CASE TODAY. I MEAN, MISS MAKAEFF IS THE PLAINTIFF IN

THIS CASE. SHE AND HER COUNSEL HAVE FIDUCIARY DUTIES, YOUR

HONOR, AND THERE ARE VERY SERIOUS ISSUES BEING RAISED ABOUT

WHETHER THE DEFENDANTS CAN EVER GET A FAIR TRIAL IF THE

ATMOSPHERE AND THE ENVIRONMENT ARE BEING POISONED. THERE IS

NO REASON TO BE RELEASING DEPOSITIONS.

THE COURT: THERE ARE ALSO ALLEGATIONS THAT THE

POISON IS A TWO-WAY STREET.

MR. PETROCELLI: I DON'T THINK THOSE ALLEGATIONS ARE

FAIR.

THE COURT: ALL RIGHT, SO YOU DON'T BELIEVE AND I'M

SURE THE PLAINTIFF DOESN'T BELIEVE TO THE CONTRARY, BUT

ULTIMATELY BOTH SIDES ARE MAKING THIS ARGUMENT.

MR. PETROCELLI: WE MAY HAVE TO GET TO THE BOTTOM OF

IT, YOUR HONOR.

BUT WITHOUT GETTING DISTRACTED ON THAT, I WANT TO

RETURN TO THE PREJUDICE, YOUR HONOR, BECAUSE IN ADDITION TO

WHAT WAS OUTLINED IN OUR PAPERS, THE EFFECT THAT SHE'S HAD ON

THE STAGE AND THE CONDUCT AND THE OUTCOME OF THE LITIGATION TO

DATE AND THE LACK OF OPPORTUNITY THAT WE HAD TO RECALIBRATE

WHAT WE WOULD HAVE DONE ABSENT MISS MAKAEFF, WE HAVE THE ISSUE

OF PREJUDICE GOING FORWARD, AND THE ARGUMENT THAT'S BEING MADE

IS THAT WE DON'T UNDERSTAND WHAT THEY'RE ASKING FOR, YOUR

HONOR, AND I BELIEVE THIS IS UNPRECEDENTED. THEY ARE ASKING

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FOR AN ORDER RIGHT NOW, EVEN WHEN NO TRIAL DATE HAS BEEN SET,

THAT SHE BE EXCUSED FROM TESTIFYING LIVE AT TRIAL, EVEN THOUGH

SHE MAY WELL BE SUBJECT TO THE JURISDICTION OF THE COURT.

THERE'S NO BASIS FOR THAT.

THE COURT: WELL, LET ME ASK YOU ABOUT THAT.

MR. PETROCELLI: WHETHER SHE -- I'M SORRY.

THE COURT: WHAT IS THE LAW ON CALLING UNNAMED -- SHE

WOULD BECOME AN UNNAMED CLASS REPRESENTATIVE -- AS A WITNESS

AT TRIAL?

MR. PETROCELLI: SHE'S SUBJECT TO THE JURISDICTION.

WE ISSUE A TRIAL SUBPOENA. OPPOSING COUNSEL OR OPPOSING

PARTIES CAN OFTENTIMES MOVE TO QUASH, TO SAY THAT SOMEBODY IS

NOT RELEVANT, AND SHE WOULD BE DIRECTLY RELEVANT, YOUR HONOR.

AND THE FACT THAT THERE ARE A THOUSAND PAGES, OR 15 HOURS, OR

WHATEVER, HER PRIOR DEPOSITION, THERE'S NO SUBSTITUTE FOR

PUTTING HER ON LIVE ON EACH OF THE THREE CORE REPRESENTATIONS.

I MEAN, SHE WAS --

THE COURT: THAT WOULD BE A SEPARATE ISSUE FOR THE

COURT TO TAKE UP AT THE APPROPRIATE TIME.

MR. PETROCELLI: WELL, TO BE CLEAR, I WOULD AGREE

THAT IT WOULD BE IMPROVIDENT AND CERTAINLY PREMATURE FOR THE

COURT TO ISSUE AN ORDER EXCUSING HER FROM TESTIFYING AT TRIAL,

BUT THAT'S THE RELIEF THAT I UNDERSTAND IS BEING REQUESTED, IN

ADDITION TO ALLOWING HER TO DISMISS HER CLAIMS WITHOUT

PREJUDICE, YOUR HONOR, AND I DON'T THINK THAT'S WARRANTED AT

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ALL, AND THERE'S REALLY NO AUTHORITY FOR THAT PROPOSITION.

THE COURT: CAN YOU POINT ME SPECIFICALLY TO THE

RECORD WHERE THAT SPECIFIC REQUEST IS MADE, THAT IS, A REQUEST

TO PREVENT THE COURT FROM ISSUING A SUBPOENA?

MR. PETROCELLI: WELL, YOU KNOW, YOUR HONOR, WE IN

OUR OPPOSITION ARGUED THAT THAT'S WHAT THEY ARE SEEKING, AND

IN THE REPLY BRIEF, BECAUSE IT WAS NOT EXACTLY CLEAR, BUT IN

THEIR REPLY BRIEF WHAT THEY CAME BACK AND SAID THAT -- AND IF

I'M MISTAKEN ON THIS, BY THE WAY, IF THEY'RE NOT SEEKING THAT

RELIEF, THEN I DON'T NEED TO ARGUE ABOUT THIS.

THE COURT: ALL RIGHT. I'M NOT -- WELL, WHAT I'M

SAYING IS, I DIDN'T SEE THAT AS A SPECIFIC REQUEST. I DO SEE

AT FOOTNOTE SIX ON PAGE EIGHT THE PLAINTIFF SAYS, EVEN IF THIS

COURT DETERMINES THAT MAKAEFF'S TESTIMONY SOMEHOW MAKES

RELEVANT, THE DEFENDANTS CAN SIMPLY USE HER DEPOSITION

TESTIMONY AT TRIAL.

MR. PETROCELLI: THAT'S THE POINT I WAS GOING TO GET

TO. SO, WHEN YOU READ THE REPLY BRIEF, THERE WASN'T ANY

STATEMENTS TO THE EFFECT THAT, NO, NO, NO, YOU'VE GOT IT

WRONG. THAT'S NOT WHAT WE'RE ASKING FOR, YOUR HONOR. IN

FACT, THAT APPEARS TO BE WHAT THEY'RE ASKING FOR, AND I THINK

THAT THAT IS COMPLETELY UNWARRANTED.

THE COURT: I STILL DON'T SEE WHERE THAT'S BEEN ASKED

FOR, BUT I UNDERSTAND THAT THAT'S YOUR ARGUMENT.

MR. PETROCELLI: OKAY. BECAUSE, YOU KNOW, WE HAVE

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STRUCTURED OUR DEFENSE TO MAKE HER THE CENTERPIECE OF THE

DEFENSE, BECAUSE WE BELIEVE THAT WHEN CALLED TO TESTIFY AT THE

TRIAL, THAT THROUGH HER TESTIMONY, LARGELY THROUGH HER

TESTIMONY, WE WILL BE ABLE TO DISPROVE THE FALSITY OF THESE

MISREPRESENTATIONS, OR THE FACT THAT THEY WERE NOT MATERIAL,

OR THE FACT THAT THEY DID NOT RELY ON THEM. ALL OF THESE

ELEMENTS ARE ELEMENTS OF PROOF THAT THE PLAINTIFF MUST MAKE IN

ADDITION, YOUR HONOR, TO THE ISSUE OF DAMAGES, WHICH WE'VE NOT

DISCUSSED.

BUT WE'VE HAD AN INITIAL CONVERSATION, AND WE WERE

GOING TO MEET AND CONFER AND COME BACK AT SOME POINT WITH YOUR

HONOR TO TALK ABOUT HOW TO ADDRESS THE ISSUE OF DAMAGES. BUT

MISS MAKAEFF ALSO WANTS TO KEEP HER CLAIM FOR RECOVERY AS A

CLASS MEMBER, AND SO SURELY SHE'S GOING TO HAVE TO SUBMIT TO

SOME KIND OF EXAMINATION ABOUT HER DAMAGES, IN ADDITION TO THE

CORE ELEMENTS.

SO I JUST -- I SEE, YOUR HONOR, THAT THIS LATE IN THE

GAME, SIX YEARS LATER, WITH ALL THAT SHE HAS TO DO TO IS SHOW

UP AND TESTIFY FOR A COUPLE OF DAYS IN TRIAL, WHY THIS

DISMISSAL SHOULD BE PERMITTED.

THE COURT: LET ME ASK YOU SOMETHING. THE 17200 AND

THE 17500 CLAIMS, THOSE ARE EQUITABLE CLAIMS THAT ARE TRIED TO

THE COURT. IS THAT YOUR UNDERSTANDING?

MR. PETROCELLI: YOU KNOW, I DON'T ACTUALLY, I DON'T

ACTUALLY DEFINITIVELY KNOW, YOUR HONOR.

Exhibit 2 45


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THE COURT: I THINK THE ANSWER IS YES.

MR. PETROCELLI: IT MAY WELL BE. I JUST AM NOT CLEAR

WHETHER THOSE CLAIMS ENTIRELY ARE EQUITABLE CLAIMS AND ONLY

TRIED TO THE COURT. THERE'S A THIRD CAUSE OF ACTION, THOUGH.

THE COURT: THERE'S THE CLRA, AND WHAT'S YOUR

POSITION AS TO WHETHER OR NOT THE CLRA IS A LEGAL CLAIM THAT

WOULD REQUIRE A JURY TRIAL?

MR. PETROCELLI: IS YOUR -- TO BE CLEAR, AS I

UNDERSTAND THE PLEADING, MISS MAKAEFF HAS THREE CLAIMS, THE

FIRST, SECOND, AND THIRD OF THEIR OPERATIVE COMPLAINT, SECTION

17200, THE UNFAIR COMPETITION LAW, SECTION 17050, THE

CALIFORNIA, THE CONSUMER LAW REMEDY ACT, I GUESS IT'S CALLED,

AND 17500, UNTRUE AND MISLEADING ADVERTISING.

THE COURT: RIGHT.

MR. PETROCELLI: IT'S BEEN MY GENERAL EXPERIENCE,

YOUR HONOR, HAVING NOT THOUGHT ABOUT THIS QUESTION, CANDIDLY,

THAT THOSE ARE EQUITABLE CLAIMS, AND, YOU KNOW, IN CALIFORNIA

EQUITABLE CLAIMS WOULD PRECEDE LEGAL CLAIMS. IN FEDERAL

COURT, IT'S THE OTHER WAY AROUND. IF THERE'S A JURY CLAIM

LEFT IN THE CASE, THE JURY HEARS THE LEGAL CLAIMS FIRST, AND

THEN THE COURT PICKS UP AND DECIDES THE EQUITABLE CLAIMS OUT

OF THAT TRIAL, AND MAYBE EVEN BIFURCATE THE TRIAL. SO THE

PROCEDURE IS A LITTLE BIT, I THINK, DIFFERENT BETWEEN STATE

AND FEDERAL COURT, BUT YOU'RE ASKING ME AN INTRIGUING

QUESTION. I'M NOT SURE WHY YOU'RE ASKING, BUT --

Exhibit 2 46


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THE COURT: WELL, IT GOES TO THE QUESTION OF

PREJUDICE.

MR. PETROCELLI: HOW SO?

THE COURT: IF ALL WE HAD WAS A 17200 AND A 17500

ACTION, WHICH ARE THE ONES THAT MAKAEFF IS ONE OF THE

REPRESENTATIVES FOR, AND THAT'S EQUITABLE CAUSE OF ACTION,

EQUITABLE CAUSES OF ACTION, RIGHT? TO BE HEARD BY ME. YOU'RE

TALKING ABOUT EVIDENCE THAT THE JURY WOULD NEVER EVEN BE

EXPOSED TO, AREN'T YOU?

MR. PETROCELLI: WELL, THE TRIER OF FACT.

THE COURT: WELL, THE JURY. I WOULD --

MR. PETROCELLI: WHETHER IT'S THE COURT OR THE TRIER

OF FACT --

THE COURT: OKAY.

MR. PETROCELLI: -- I DON'T KNOW THAT THAT WOULD

CHANGE THE ANALYSIS AT ALL. WE WOULD STILL --

THE COURT: BECAUSE IT SEEMS TO ME THAT YOU'RE

RELYING UPON MISS MAKAEFF TO SOMEHOW DEFEND AGAINST ALL THE

CAUSES OF ACTION --


THE COURT: -- THE NEW YORK AND FLORIDA.

MR. PETROCELLI: NEW YORK AND FLORIDA, BECAUSE IT'S

THE SAME SET OF FACTS, YOUR HONOR. THERE MAY BE DIFFERENT

NUANCES TO THE INDIVIDUAL STATUTES, AND I'M NOT SAYING SHE'S A

CLASS REP FOR THE FLORIDA OR NEW YORK CLAIM, BUT IT'S THE SAME

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FACTS. AND HER CREDIBILITY, WHICH, FRANKLY, WE HAVE FEATURED

AS A CENTERPIECE OF OUR LITIGATION IN OUR DEFENSE, AND YOU CAN

EVEN LOOK AT THE TRIAL MATERIALS THAT HAVE BEEN PUT TOGETHER

AND ALREADY FILED WITH THE COURT, I MEAN, WE HAVE TO BASICALLY

START ALL OVER AGAIN, YOUR HONOR, IF SHE'S DISMISSED NOW. AND

AGAIN, I ASK THE COURT, FOR WHAT REASON OTHER THAN HER DESIRE

TO NOT FINISH WHAT SHE STARTED. NOW, YES, IT'S A HIGH-PROFILE

CASE. I GET THAT, YOUR HONOR.

THE COURT: HAVE YOU EVER HAD A HIGHER-PROFILE CASE?

I KNOW YOU'VE HAD SOME OTHERS.

MR. PETROCELLI: OH, I'VE HAD TWO. I'VE HAD TWO,

BUT, YOU KNOW --

THE COURT: AND I ASKED. DO YOU THINK THIS CASE,

WHEN IT GOES TO TRIAL, WILL HAVE AS MUCH MEDIA ATTENTION?

MR. PETROCELLI: THIS WILL BE A ZOO IF IT WERE TO GO

TO TRIAL, AND, YOU KNOW, WE TALKED LAST TIME, YOUR HONOR, ON

THAT SUBJECT, ABOUT (PAUSE) --

THE COURT: AND LET ME ASK YOU THIS.

MR. PETROCELLI: -- SETTING THIS CASE FOR TRIAL,

WHICH WE DECIDED TO DEFER UNTIL AFTER THE JULY CONVENTION TO

SEE WHAT HAPPENS.

THE COURT: RIGHT.

MR. PETROCELLI: BECAUSE I'M GOING TO HAVE A LOT TO

SAY ON THAT SUBJECT IF MR. TRUMP IS THE NOMINEE.

THE COURT: ALL RIGHT, AND SO LET ME ASK YOU. TO THE

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EXTENT THAT HE IS THE NOMINEE, ARE YOU GOING TO ASK THE COURT

TO SET THE MATTER FOR TRIAL IN AUGUST?

MR. PETROCELLI: I AM NOT, YOUR HONOR, IN ALL

LIKELIHOOD, AND I MAY ASK THE COURT (PAUSE) -- AND, HONESTLY,

THE REASON WHY I RAISED THIS ISSUE OF POLLUTING THE

ENVIRONMENT IS BECAUSE I AM VERY HOPEFUL THAT THIS WILL STOP,

BECAUSE I DO THINK IT WILL HAVE AN EFFECT ON THE INTEGRITY OF

THE PROCEEDINGS IF IT CONTINUES. WE SHOULD NOT BE LITIGATING

THIS CASE ON A PUBLIC DEBATE FORUM FOR PRESIDENT OF THE UNITED

STATES, AND IT'S DEEPLY PREJUDICING. EVERYBODY THAT COMES UP

TO ME NOW KNOWS ABOUT THIS CASE, AND BASED ON WHAT THEY READ

IN THE PAPERS, THEY USUALLY DON'T HAVE SOMETHING NICE TO SAY

TO ME ABOUT IT, AND I THINK IF IT CONTINUES, IT'S ONLY GOING

TO DIG A DEEPER HOLE FOR US, YOUR HONOR.

THE COURT: SO LET ME ASK YOU THIS. TO THE EXTENT

THAT THE COURT, THEN, IS WILLING TO ACCOMMODATE THIS REQUEST

TO CONTINUE THE TRIAL PAST AUGUST, AND WE'RE NOW AT MARCH, SO

WE'RE TALKING ABOUT A TRIAL DATE THAT WOULD BE, AT A MINIMUM,

FIVE, SIX, SEVEN, EIGHT MONTHS FROM NOW, WHY WOULDN'T THAT

GIVE YOU ENOUGH TIME AT THIS POINT TO FURTHER DEPOSE MR. LOW

AND TAKE FURTHER STEPS TO RECALIBRATE YOUR STRATEGY?

MR. PETROCELLI: WELL, YOUR HONOR, THE SHORT ANSWER

IS THAT IT MIGHT. IT MIGHT DEFER. I MEAN, I DON'T THINK IT'S

FAIR THAT WE HAVE TO DO THIS AGAIN. I THINK LEGAL PREJUDICE

HAS ALREADY OCCURRED, AND I KNOW THAT YOUR HONOR IS TRYING TO

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NAVIGATE BECAUSE THE LAW SAYS THAT IF YOU'RE GOING TO LET

SOMEBODY DISMISS, THERE SHOULD BE CONDITIONS TO TRY TO

MITIGATE. I'M TELLING YOU WE'VE PASSED THE POINT OF NO

RETURN.

BUT, YOU KNOW, IF YOUR HONOR IS GOING TO ALLOW THIS

PERSON TO DISMISS HER CLAIMS, (A) IT SHOULD BE WITH PREJUDICE.

SHE SHOULD NOT BE ABLE TO CONTINUE TO RECOVER AS A CLASS

MEMBER, BUT AT THE LAST SECOND SAY, YOU KNOW WHAT? LET

SOMEBODY ELSE PROVE MY CLAIM. I DON'T WANT TO DO IT ANYMORE.

I DON'T THINK THERE'S ANY BASIS TO LET HER OUT WITHOUT

PREJUDICE.

BUT EVEN IF IT'S WITH PREJUDICE, YOUR HONOR, I'M

SUGGESTING TO YOU THAT IT WOULD TAKE A LOT MORE THAN TAKING

ANOTHER DAY OF MR. LOW'S DEPOSITION, THAT WE WOULD WANT TO GO

BACK AND REVIEW WHETHER AND TO WHAT EXTENT WE HAD A BASIS TO

REVISIT PRIOR RULINGS OF THE COURT. AND I KNOW IT'S THE LAST

THING YOUR HONOR WANTS TO HEAR FROM ME, BECAUSE YOU TOLD ME

LAST TIME THIS IS THE SECOND-OLDEST CASE ON YOUR DOCKET. IT

MAY NOT BE THE OLDEST, BUT I DON'T WANT TO PUT YOU ON THE

SPOT.

THE COURT: MY OLDEST CASE IS A 1951 CASE.

MR. PETROCELLI: OH, THAT'S RIGHT. THAT'S RIGHT.

THE COURT: THAT CASE WILL BE AROUND LONG AFTER.

MR. PETROCELLI: WE'VE GOT A WAYS TO GO ON THAT, YOUR

HONOR. BUT I ALSO BELIEVE THAT WE WOULD EFFECTIVELY HAVE TO

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DO A DO-OVER, AND I DON'T THINK THAT THE LAW GOES THAT FAR IN

SEEKING TO CURE OR MITIGATE PREJUDICE. I BELIEVE THAT IF YOU

WEIGH ALL THE FACTORS, YOUR HONOR, THAT SHE HAS NOT MADE A

COMPELLING CASE TO BE RELIEVED AS A CLASS REPRESENTATIVE IN

THIS CASE.


MR. PETROCELLI: THANK YOU VERY MUCH.

THE COURT: THANK YOU.

LET ME ASK ONE FURTHER QUESTION OF PLAINTIFFS'

COUNSEL, MISS JENSEN. WITH RESPECT TO THIS QUESTION THAT CAME

UP DURING MY QUESTION TO MR. PETROCELLI, WHAT'S YOUR POSITION

AS TO WHETHER OR NOT THE DEFENDANTS WOULD BE ABLE, WOULD HAVE

THE RIGHT TO SUBPOENA MISS MAKAEFF AT TRIAL?

MR. FORGE: YOUR HONOR, MAY I ADDRESS THAT?

THE COURT: MR. FORGE. YES.

MR. FORGE: YOUR HONOR, YOU WERE CORRECT WHEN YOU

POINTED OUT THAT WE HAD NOT MADE THAT REQUEST TO EXCLUDE HER

FROM THE TRIAL, ALTHOUGH I'M OBLIGATED TO POINT OUT THAT IF

MISS MAKAEFF WERE NOT A PARTY TO THIS CASE, SHE WOULD BE

OUTSIDE THE JURISDICTION OF THE COURT FOR PURPOSES OF PROCESS.

SO THE DEFENSE WOULD NOT BE ABLE TO SUBPOENA HER TO APPEAR AT

TRIAL. AND EVEN THE IDEA OF IT OBVIOUSLY DEFEATS THE PURPOSE

OF THE MOTION ITSELF, BECAUSE THAT WOULD STILL SUBJECT HER TO

THE SAME ANXIETY, THE SAME STRESS, THE SAME MEDIA CIRCUS THAT

HAS BEEN STIRRED UP NOT BY THE PLAINTIFFS IN THIS CASE, YOUR

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HONOR, AND I WOULD LIKE TO ADDRESS THAT ISSUE BRIEFLY.

MR. PETROCELLI MENTIONED A NEW YORK TIMES ARTICLE

FROM TODAY. THERE WAS NO ONE WHO SPOKE IN THAT ARTICLE WITH

ANY AUTHORIZATION FROM ANYONE FROM THE PLAINTIFFS. THERE IS,

HOWEVER, SOMEONE WHO WAS QUOTED IN THAT ARTICLE WHO IS HERE IN

THIS COURTROOM, AND IT'S THE MAN WHO WAS POUNDING THE LECTERN

ABOUT US POISONING THE ATMOSPHERE FOR THIS TRIAL. SO I THINK

THAT THAT IS A METAPHOR FOR VIRTUALLY ALL OF MR. PETROCELLI'S

ARGUMENTS, WHICH IS TO GO SO AGGRESSIVELY ON THE OFFENSIVE, TO

IGNORE THE FACT THAT HE'S ARGUING THE OPPOSITE OF WHAT THE

DEFENSE HAS BEEN DOING.

THE FASTEST MR. PETROCELLI RAN FROM ONE OF THE

QUESTIONS YOUR HONOR RAISED WAS WHEN YOUR HONOR TRIED TO FOCUS

ON THE ACTUAL ISSUES THAT ARE GOING TO BE LITIGATED IN THE

LIABILITY PHASE OF THIS TRIAL, WHICH IS THE ENTIRE TRIAL. WE

ONLY HAVE A CLASS ACTION FOR LIABILITY, SO ALL WE'RE TALKING

ABOUT IS LIABILITY. AND AS YOUR HONOR APTLY POINTED OUT,

THERE IS NOTHING, AND MISS MAKAEFF CAN BE THE GREATEST WITNESS

OR WORST WITNESS ON THE STAND, IT WOULD NOT IMPACT AT ALL THE

ALLEGATION REGARDING THE MISLEADING NATURE OF THE NAME TRUMP

UNIVERSITY (INDICATING QUOTATION MARKS), DESPITE BEING TOLD

NOT TO USE THE NAME.

AGAIN, SHE CAN BE THE GREATEST WITNESS OR THE WORST

WITNESS. IT WOULD NOT AFFECT AT ALL THE MISLEADING NATURE OF

MR. TRUMP'S REPRESENTATIONS THAT ALL THE INSTRUCTORS WERE

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HANDPICKED. IT WOULD NOT AFFECT AT ALL THE ALLEGATIONS

REGARDING THE MENTORSHIP. THE FACT OF THE MATTER IS, THE

ISSUES TO BE TRIED IN THIS LIABILITY PHASE ARE DISCRETE AND

THEY HAVE NOTHING TO DO WITH MISS MAKAEFF'S TESTIMONY.

WHETHER IT'S THE GREATEST TESTIMONY OR THE WORST TESTIMONY,

THEY'D BE INEFFECTIVE.

I THINK, YOUR HONOR, THIS EVIDENCE WOULD NOT COME IN

IN THE LIABILITY PHASE WHETHER SHE'S A PARTY TO THE CASE OR

NOT AT THAT POINT, AND THAT'S WHY WHY I REALLY THINK THE FOCUS

NEEDS TO BE, AND ONLY THERE, TO REVEAL THAT THERE IS NO

PREJUDICE HERE. THERE'S NOT EVEN A POSSIBILITY OF PREJUDICE

HERE TO THE DEFENSE, BECAUSE MISS MAKAEFF SIMPLY IS NOT A

RELEVANT WITNESS TO THOSE ISSUES.

THE COURT: PREJUDICE AS TO THE MERITS.

MR. FORGE: AS TO THE MERITS. EXACTLY.

THE COURT: NOT PREJUDICE AS TO THE AMOUNT OF TIME

AND THE RESOURCES BEING DEVOTED TO PREPARE FOR TRIAL WITH

RESPECT TO MISS MAKAEFF.

MR. FORGE: WELL, THOSE TWO ARE SOMEWHAT TIED

BECAUSE, SINCE THERE IS NO PREJUDICE TO THE MERITS, I DON'T

THINK IT WOULD BE FAIR TO SAY THAT ALL THE TIME WE DEDICATED

TO NON-MERITORIOUS, NON-MERIT-BASED ISSUES HAS SOMEHOW

PREJUDICED US. I MEAN, I DO THINK EVEN THAT IS RELATED, YOUR

HONOR.

THE COURT: ALL RIGHT. LIKE I SAID, I THINK THAT THE

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DISTRICT COURT IN BP WEST COAST PRODUCTS LOOKED AT WHETHER OR

NOT THE CLAIMS HAVE BEEN EXTENSIVELY LITIGATED, AND I DON'T

THINK THERE'S ANY QUESTION IN THIS CASE THE CLAIMS HAVE BEEN

EXTENSIVELY LITIGATED.

MR. FORGE: ABSOLUTELY. BUT MY POINT IS, HER

WITHDRAWAL WOULD NOT PREJUDICE THAT EFFORT. WE WOULD STILL BE

WHERE WE ARE TODAY IF SHE HAD NEVER, IF SHE HAD NEVER APPEARED

IN THIS CASE, OR IF SHE HAD WITHDRAWN FIVE YEARS AGO, BECAUSE

WE WOULD STILL HAVE THREE CLASS REPRESENTATIVE WHO YOUR HONOR

INDEPENDENTLY VETTED AND INDEPENDENTLY APPROVED AS CLASS

REPRESENTATIVES.

AND AGAIN YOUR HONOR WILL RECALL, THEY TRIED TO HAVE

THE CASE FOR MISS MAKAEFF THROWN OUT ON SUMMARY JUDGMENT. SO

I REALLY THINK THAT, AGAIN, THAT'S ANOTHER EXAMPLE OF -- I'M

NOT GOING TO POUND ON THE LECTERN TO MAKE THIS POINT. I'M NOT

GOING TO -- MY VOICE IS NOT GOING TO ECHO OFF THE WALLS HERE,

BUT I FEEL VERY STRONGLY ABOUT IT, AND I THINK THE RECORD

PROVES IT. THERE SIMPLY IS NOT SUBSTANCE TO BACK UP WHAT

THEY'RE SAYING, BECAUSE THEY THEMSELVES ASKED FOR MISS

MAKAEFF, MISS MAKAEFF'S CLAIMS, HER ALONE, TO BE THROWN OUT,

TO BE AWARDED SUMMARY JUDGMENT, AND SO THAT'S AFTER THE FACT

THAT DISCOVERY IS CLOSED, THEY HAD MADE ALL THE DECISIONS THEY

MADE BEFORE, AND THEY INDEPENDENTLY ARGUE IN THEIR SUMMARY

JUDGMENT MOTION THAT MISS MAKAEFF CANNOT PROVE HER CLAIMS.

NOW, THEY DID IT FOR EACH OF THE FOUR CLASS

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REPRESENTATIVES, TO BE SURE, BUT THE FACT THAT THEY MADE IT AN

INDEPENDENT ARGUMENT FOR EACH ONE, AND AGAIN THIS IS THEIR

MOTION, THEY'RE HOPING THAT YOU AWARD THEM SUMMARY JUDGMENT AS

TO MISS MAKAEFF'S CLAIMS AFTER THE DISCOVERY HAS BEEN SETTLED,

AFTER DISCOVERY HAS ENDED, AND SO THAT TO ME, YOUR HONOR,

SHOULD SETTLE THE QUESTION.

THE COURT: ALL RIGHT. LET ME ASK YOU A QUESTION

THAT I ASKED MR. PETROCELLI ABOUT THE TRIAL DATE. WHEN WE

WERE HERE LAST DECEMBER OR JANUARY, WE HAD TALKED ABOUT

SETTING THE MATTER FOR A PRETRIAL CONFERENCE IN MAY, WITH THE

UNDERSTANDING THAT WE WOULDN'T SET A TRIAL BEFORE AUGUST IN

ORDER TO PERMIT MR. TRUMP TO MOVE FORWARD WITH THE REPUBLICAN

NATIONAL CONVENTION IN JULY, AND THAT AT THIS POINT MR.

PETROCELLI INDICATED THAT AT THIS POINT, IF IT WAS UP TO THEM,

THIS CASE WOULDN'T BE TRIED BEFORE THE ELECTION BECAUSE OF ALL

OF THE, IF NOT THE HISTRIONICS, ALL OF THE ATTENTION THAT'S

BEEN FOCUSED ON THIS CASE AND HOW THAT WOULD MAKE IT VERY

DIFFICULT TO AFFORD BOTH SIDES A FAIR TRIAL. DO YOU AGREE

WITH THAT?

MR. FORGE: YOUR HONOR, MY FIRST REACTION WAS, WELL,

IF WE CAN'T GO IN AUGUST, LET'S GO IN JUNE, BUT LOOK, IT IS --

I WOULD BE, I WOULD BE FOOLISH TO EVEN PRETEND TO KNOW HOW A

CASE LIKE THIS SHOULD BE HANDLED AT THIS POINT BECAUSE IT

REALLY IS AN UNPRECEDENTED LEVEL OF PUBLICITY --

THE COURT: SCRUTINY.

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MR. FORGE: -- AND UNPRECEDENTED, DIFFERENT FORMS OF

THAT PUBLICITY. WE'VE ALL SEEN HIGH-PROFILE CASES, BUT

NOTHING LIKE THIS. NOW, WHETHER THAT IMPACTS OUR ABILITY TO

PICK A FAIR JURY, IT WOULD BE FOOLISH FOR ME TO SAY IT

WOULDN'T. I MEAN, OF COURSE IT WOULD. WHETHER IT MAKES IT

IMPOSSIBLE, I JUST, I JUST DON'T KNOW. BUT IT WOULD BE, I

WILL AGREE, IT WOULD BE DIFFICULT. THAT DOES NOT MEAN THAT WE

DON'T GO FORWARD ON SOME CLAIMS. WE CAN CERTAINLY GO FORWARD

ON SOME OF THE CLAIMS THIS YEAR, IN AUGUST.

THE COURT: WELL, I DON'T KNOW IF I UNDERSTAND. TO

THE EXTENT THAT THIS SCRUTINY, THIS FOCUS, THIS OBSESSION WITH

THIS CASE IS WHAT IT IS, HOW WOULD IT BE POSSIBLE TO AVOID ALL

OF THAT WITH ANY FORM OF TRIAL IN THIS CASE?

MR. FORGE: WELL, I WAS JUST, I WAS JUST ALLUDING TO

THE FACT THAT YOU DO HAVE TWO BENCH TRIALS IN THE CASE, YOUR

HONOR. YOUR HONOR RAISED THAT, AND I WAS SIMPLY ALLUDING TO

THE FACT THAT -- I KNOW WE HAVE ONE FAIR AND UNBIASED

FACT-FINDER HERE, AND SO, WHO WOULD UNAFFECTED BY THE

PUBLICITY.

THE COURT: WELL, AND I BELIEVE MR. PETROCELLI

INDICATED THAT, IN HIS VIEW, THE LAW IN FEDERAL COURT IS THAT

THE LEGAL CLAIMS GO BEFORE THE EQUITABLE.

MR. FORGE: I HAVE NOT --

THE COURT: DO YOU DISPUTE THAT?

MR. FORGE: I LOOKED AT THE ISSUE, YOUR HONOR. I

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CAN'T SAY I'VE FOCUSED ON IT. I'VE LOOKED AT THE CASES. I

HAVE NEVER SEEN A CASE THAT SAID THAT, NO, BUT THE EQUITABLE

CLAIMS CANNOT BE TRIED TO A BENCH TRIAL FIRST. I HAVEN'T SEEN

THAT. I'M NOT SAYING IT DOESN'T EXIST, BUT I HAVE NOT SEEN

IT.

THE COURT: I WANT TO SAY THAT THE RESEARCH THAT

WE'VE DONE IN THE PAST SUGGESTS THAT THE ANSWER IS YOU WOULD

TRY THE EQUITABLE AFTER THE LEGAL, BUT THAT'S SOMETHING I

THINK WE'LL KEEP LOOKING AT AS WE PROCEED.

MR. FORGE: AND, YOUR HONOR, I'M NOT SUGGESTING THAT

THAT HASN'T BEEN THE PRACTICE, BUT WHAT I'M SUGGESTING, I

HAVEN'T SEEN THAT THAT IS SOMEHOW MANDATORY, AND I'M NOT

SUGGESTING THAT WE EVEN DO THAT. I WOULD LIKE TO GET THE CASE

TO TRIAL AS SOON AS WE COULD ON ALL THE CLAIMS, BUT IF WE'RE

THROWING OUT IDEAS, THAT IS ONE THAT SHOULD BE CONSIDERED.

THE COURT: ALL RIGHT. WELL, THOSE ARE ALL THE

QUESTIONS THAT I HAVE.

MR. PETROCELLI: MAY I JUST BRIEFLY RESPOND?

THE COURT: YES, BRIEFLY.

MR. PETROCELLI: I JUST WANT TO ADDRESS THE POINT

THAT MR. FORGE SAID ABOUT A LACK OF SUBSTANTIVE PREJUDICE,

YOUR HONOR, BECAUSE I COULD NOT DISAGREE MORE WITH THAT.

FIRST OF ALL, ON THE MOTION FOR SUMMARY JUDGMENT,

THAT WAS AS TO THE ENTIRE CASE, AND IT WAS DENIED. SO THERE

WASN'T ANY -- THE ARGUMENT THAT BECAUSE WE WERE MAKING A

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MOTION TO DISMISS THE ENTIRE CASE, SOMEHOW WE WERE PREPARED TO

GO FORWARD WITHOUT MISS MAKAEFF JUST DOESN'T MAKE ANY SENSE TO

ME.

BUT SECONDLY, AND THE MORE IMPORTANT POINT, YOUR

HONOR, IS THAT THE PLAINTIFFS HAVE THIS VIEW THAT THEY CAN

SOMEHOW TRY THIS CASE EXACTLY THE WAY THEY WANT TO TRY IT,

WITH JUST PUTTING ON A COUPLE OF WITNESSES FROM THE DEFENSE TO

SAY, YOU KNOW, WAS THE INSTRUCTOR HANDPICKED, OR ARE YOU A

REAL UNIVERSITY? THAT'S -- THEY'VE GOT A BURDEN, YOUR HONOR,

TO PROVE THE FALSITY OF THE MISREPRESENTATIONS. THEY'VE GOT A

BURDEN TO PROVE MATERIALITY. THEY HAVE A BURDEN TO PROVE

RELIANCE.

THE COURT: AS FAR AS FALSITY, HOW WOULD IT DEPEND

UPON MISS MAKAEFF'S TESTIMONY AS TO WHETHER OR NOT THAT

STATEMENT THAT TRUMP HANDPICKED HIS INSTRUCTORS, WHETHER

THAT'S FALSE?

MR. PETROCELLI: LET ME GIVE YOU A PERFECT EXAMPLE,

YOUR HONOR. SHE MAY TESTIFY, I DIDN'T THINK THAT HE

HANDPICKED THE INSTRUCTORS. I DIDN'T UNDERSTAND IT THAT WAY.

I DIDN'T THINK HE REALLY --

THE COURT: BUT THAT'S DIFFERENT FROM WHETHER OR NOT

THE STATEMENT IS TRUE.

MR. PETROCELLI: WELL, NO, BECAUSE IT MAY NOT BE

PERCEIVED AS A FACTUAL STATEMENT IN WHICH TRUTH OR FALSITY IS

NOT REALLY RELEVANT.

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THE COURT: BUT IS THAT A QUESTION OF RELIANCE?

MR. PETROCELLI: WELL, THERE'S A BETTER EXAMPLE THAN

THAT, YOUR HONOR. LET'S TAKE THE THIRD MISREPRESENTATION THAT

THEY'RE ALLEGING THAT YOU CERTIFIED, WHICH IS EFFECTIVELY THAT

THERE WAS NO MENTORSHIP PROGRAM. THAT'S GOING TO DEPEND

ENTIRELY ON HER TESTIMONY. SHE'S GOING TO HAVE TO GET UP

THERE AND EXPLAIN HOW SHE COULD SAY THAT THAT REPRESENTATION

WAS FALSE, GIVEN HER EXTENSIVE ACTIVITIES IN THE MENTORING

PROGRAM, INCLUDING ACTUALLY MAKING AN INVESTMENT IN A HOME IN

CONNECTION WITH ONE OF THE MENTORING ACTIVITIES. SO, I MEAN,

THE PLAINTIFFS, TO SUGGEST THAT THEY CAN PROVE THEIR CASE

WITHOUT PLAINTIFFS' TESTIMONY AND THAT WE WOULD HAVE NO RIGHT

TO CALL WITNESSES IS PREPOSTEROUS, YOUR HONOR, AND THAT'S

WHAT'S BEING SUGGESTED.

THE COURT: WELL, I DON'T THINK THAT THAT'S WHAT'S

BEING SUGGESTED, BECAUSE THE BURDEN OF PROOF, OBVIOUSLY,

BEGINS WITH THE PLAINTIFF --

MR. PETROCELLI: WELL --

THE COURT: -- AND IT'S UP TO THE PLAINTIFF, IT'S

INCUMBENT UPON THE PLAINTIFF TO CALL WITNESSES, TO PUT ON THE

TESTIMONY TO PROVE EACH OF THE ELEMENTS OF THE CAUSE OF

ACTION. IF THEY DON'T DO THAT, THEN YOU WIN.

MR. PETROCELLI: BUT WE WILL HAVE THE ABILITY TO CALL

WITNESSES, TOO, YOUR HONOR, AND WE CAN CALL MISS MAKAEFF OR A

COUPLE OF OTHER WITNESSES WHO WILL DIRECTLY CONTRADICT WHAT

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SONNY LOW MAY SAY OR SOME OTHER WITNESS THAT THEY CALL.

THAT'S WHY WE HAVE TRIALS. BUT TO SAY THAT SHE SHOULD BE

IMMUNIZED FROM APPEARING AT TRIAL, IT'S JUST WHOLLY

UNJUSTIFIED IN THE LAW, YOUR HONOR.

THE COURT: WELL, I MEAN, AND I GUESS IT DEPENDS ON

HOW YOU DEFINE IMMUNITY. TO THE EXTENT THAT THE PLAINTIFF

ISN'T ENTITLED TO RELY UPON THE TESTIMONY OF MISS MAKAEFF,

THAT ULTIMATELY THEY GET NO BENEFIT FROM WHAT SHE HAS TO SAY,

THEY CAN'T RELY UPON IT, AND THEN THEY'VE MADE THAT --

MR. PETROCELLI: WE WANT TO RELY ON IT.

THE COURT: ALL RIGHT. WELL --

MR. PETROCELLI: WE WANT TO RELY ON IT BECAUSE

IT'S --

THE COURT: IT'S RELIED UPON BY THE PLAINTIFF TO MAKE

THEIR CASE.

MR. PETROCELLI: IT'S EXTREMELY DAMAGING TO THEIR

CASE, AND IT TYPIFIES WHY THEIR CASE LACKS MERIT, YOUR HONOR.

WE WANT TO. THAT'S WHAT OUR WHOLE CASE LITIGATION STRATEGY

HAS BEEN.

THE COURT: AND IT SOUNDS LIKE IT'S MORE FACT-BASED

THAN LEGAL-DEFENSE BASED, THE STATUTE OF LIMITATIONS OR SOME

OTHER LEGAL DEFENSE THAT THE NINTH CIRCUIT HAS RECOGNIZED AS

BEING SOMETHING PROPERLY CONSIDERED IN DENYING THE MOTION TO

WITHDRAW WITHOUT PREJUDICE.

MR. PETROCELLI: THESE ARE ADMISSIONS OF THE LEAD

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PLAINTIFF MADE DURING SIX YEARS OF LITIGATION THAT, IN OUR

VIEW, NOT ONLY UNDERMINE BUT REFUTE THE BASIC CLAIMS IN THE

CASE, AND TO SAY THAT NOW SOMEHOW WE ARE DEPRIVED OF HAVING

THE TRIER OF FACT BE PRESENTED WITH THAT TESTIMONY -- AND BY

THE WAY, YOUR HONOR, THE IDEA THAT ALL OF A SUDDEN THIS

WITNESS WOULD BECOME UNAVAILABLE TO US BECAUSE SHE'S NOW GOING

TO FLEE THE JURISDICTION OR LEAVE THE JURISDICTION, IF SHE'S

NOT ALREADY LEFT THE JURISDICTION, I THINK, IS ANOTHER EXAMPLE

OF PREJUDICE TO US, YOUR HONOR. SHE COMMITTED IN HER

DECLARATION THAT SHE WOULD BE AVAILABLE TO TESTIFY AT TRIAL.

THE COURT RELIED ON THAT DECLARATION AND GRANTED CERTIFICATION

BASED ON THAT, AS WELL AS THE COURT HAVING RELIED ON MANY

OTHER THINGS THAT SHE SAID AND DID THAT WAS PRESENTED TO THE

COURT.

THE COURT: AND RELIED UPON DECLARATIONS OF MANY

OTHER WITNESSES.

MR. PETROCELLI: OH, YOU KNOW, YOUR HONOR, THAT IS

REALLY BEING OVERSTATED, IN ALL DUE RESPECT TO OPPOSING

COUNSEL. I WENT BACK AND ACTUALLY COUNTED THEM. OKAY? IF

YOU COUNT THE CITATIONS TO TARLA MAKAEFF VS. THE CITATIONS TO

SONNY LOW, FOR EXAMPLE, I THINK IT'S A FACTOR OF TWO-TO-ONE,

AND IF MAKAEFF WASN'T SUCH AN IMPORTANT WITNESS TO THEM, WHY

DID THEY RELY SO PROMINENTLY ON HER TESTIMONY, ON HER

DECLARATION, ON HER DEPOSITION, ON HER CLAIMS, ON HER

ARGUMENTS? SO I JUST SEE NO WAY THAT THE DEFENDANTS COULD

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EVER GET A FAIR TRIAL, JUDGE OR JURY, IF WE'RE SOMEHOW

DEPRIVED OF THE OPPORTUNITY TO PUT THIS PERSON ON.

AND BY THE WAY, IF SHE IS GOING TO BE OUT OF THE

JURISDICTION, THEN WE SHOULD BE ENTITLED TO TAKE HER

DEPOSITION. SHE SHOULD BE ORDERED TO APPEAR AND GIVE TRIAL

TESTIMONY, YOUR HONOR, EVEN IF IT HAS TO BE IN A DEPOSITION,

BUT I DON'T THINK THAT SHE SHOULD BE ALLOWED TO LEAVE AT THE

LAST MINUTE NOW THAT SHE HAS TO GET ON THE WITNESS STAND AND

ACTUALLY PROVE ALL THE THINGS THAT SHE'S BEEN SAYING.


MR. PETROCELLI: THANK YOU.

THE COURT: THANK YOU ALL.

I'M GOING TO TAKE THE MATTER UNDER SUBMISSION, AND WE

HOPE TO HAVE A RULING WITHIN A WEEK OR SO.

MR. PETROCELLI: THANK YOU VERY MUCH, YOUR HONOR.

MR. FORGE: THANK YOU, YOUR HONOR.

(PROCEEDINGS ADJOURNED AT 2:30 P.M.)

-------------------------------------------------------------

(END OF TRANSCRIPT)

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I, FRANK J. RANGUS, OFFICIAL COURT REPORTER, DO

HEREBY CERTIFY THAT THE FOREGOING TRANSCRIPT IS A TRUE AND

ACCURATE TRANSCRIPTION OF MY STENOGRAPHIC NOTES.

S/FRANK J. RANGUS

FRANK J. RANGUS, OCR

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CERTIFICATE OF SERVICE

I hereby certify that on March 18, 2016,1 caused the foregoing to be electronically

filed with the clerk of the court using the CM/ECF system which will send notification of

such filing to the e-mail address denoted on the electronic Mail Notice List.

I certify under penalty of perjury under the laws of the United States of America

that the foregoing is true and correct.

Executed on March 18, 2016, at Los Angeles, California

CERTIFICATE OF SERVICE CASE NUMBER: 10-CV-0940-GPC(WVG)


DANIEL M. PETROCELLI (S.B. #97802) DAVID L. KIRMAN (S.B ...

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