Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 1 of 15 1 ROBBINS GELLER RUDMAN & DOWD LLP PATRICK J. COUGHLIN (111070) 2 patc@rgrdlaw.com JASON A. FORGE (181542) 3 jforge@rgrdlaw.com RACHEL L. JENSEN (211456) 4 rjensen@rgrdlaw.com BRIAN E. COCHRAN (286202) 5 bcochran@rgrdlaw.com 655 West Broadway, Suite 1900 6 San Diego, CA 92101 Telephone: 619/231-1058 7 619/231-7423 (fax) 8 ZELDES HAEGGQUIST & ECK, LLP AMBER L. ECK (177882) 9 ambere@zhlaw.com HELEN I. ZELDES (220051) 10 helenz@zhlaw.com ALREEN HAEGGQUIST (221858) 11 alreenh@zhlaw.com AARON M. OLSEN (259923) 12 aarono@zhlaw.com 225 Broadway, Suite 2050 13 San Diego, CA 92101 Telephone: 619/342-8000 14 619/342-7878 (fax) 15 Class Counsel 16 [Additional counsel appear on signature page.] 17 UNITED STATES DISTRICT COURT 18 SOUTHERN DISTRICT OF CALIFORNIA 19 TARLA MAKAEFF, SONNY LOW, ) J.R. EVERETT and JOHN BROWN, on ) 20 Behalf of Themselves and All Others ) Similarly Situated, ) 21 ) Plaintiffs, ) 22 ) vs. ) 23 ) TRUMP UNIVERSITY, LLC, a New ) 24 York Limited Liability Company and ) DONALD J. TRUMP, ) 25 ) Defendants. ) 26 ) 27 [Caption continued on following page.] 28 1124391_1 No. 3:10-cv-0940-GPC(WVG) CLASS ACTION REPLY IN FURTHER SUPPORT OF PLAINTIFF/COUNTERDEFENDANT TARLA MAKAEFF’S MOTION TO WITHDRAW DATE: TIME: CTRM: JUDGE: March 11, 2016 1:30 p.m. 2D Hon. Gonzalo P. Curiel Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 2 of 15 1 TRUMP UNIVERSITY, LLC, 2 3 4 5 ) ) Counterclaimant, ) ) vs. ) ) TARLA MAKAEFF, ) ) Counter defendant. ) ) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1124391_1 Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 3 of 15 1 I. INTRODUCTION 2 Tarla Makaeff (“Makaeff”) made a few mistakes. She trusted Donald Trump. 3 She took him at his word. She wanted to learn from him. When Trump personally 4 promised that he had handpicked instructors to teach his secret real estate techniques 5 at Trump University (“TU”), Makaeff believed him. Trump has confessed to making 6 these representations about TU in order to influence people to enroll. And it worked. 7 Makaeff, like others, paid tens of thousands of dollars to enroll in TU’s live events. 8 In recent sworn testimony that Trump tried to keep secret, he finally confessed 9 that the representations he had made to influence people to enroll in TU were false. 10 He did not handpick any of TU’s live events instructors. He did not even meet them. 11 When shown the sworn testimony of a “top Trump certified mentor” explaining his 12 complete lack of experience, Trump remarked: “He defrauded us” and “sue him.” 13 Trump acknowledged that other instructors’ presentations showed they lied to students 14 about their connections to him, and that he had no idea how many of TU’s live events 15 instructors had “slipped through cracks.” Trump also confessed that he had no real 16 estate techniques beyond those described in his publicly-available books. 17 Trump, who falsely represented he had handpicked all of TU’s “people,” asserts 18 he did not defraud those he influenced to enroll at TU. Rather, it is all somehow 19 Makaeff’s fault. Trump’s big secret would have stayed secret if she had quietly 20 accepted getting fleeced, so taking her money is not enough. Trump’s opposition and 21 recent stump speech, in which he denigrated her on national television, confirm that 22 Trump wants to punish Makaeff. Because Makaeff had nothing to do with Trump’s 23 fraud, her withdrawal has nothing to do with any legitimate defense. “Prejudicing” 24 Trump’s desire to turn this trial into a circus of gratuitous personal attacks is not the 25 type of prejudice the law protects against. For Makaeff’s well-being and the dignity 26 of these proceedings, the Court should grant her motion to withdraw. 27 II. ARGUMENT 28 Since Makaeff filed her motion, Trump has: (i) designated Makaeff’s former 1124391_1 -1- 3:10-cv-0940-GPC(WVG) Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 4 of 15 1 acquaintances as trial witnesses, but not done so for any other class representatives1; 2 (ii) filed an opposition confirming that personal attacks on Makaeff are the central 3 focus of his defense, going so far as to say it “would cripple Defendants’ ability to 4 defend this case” if they cannot make these attacks against one of the 7,000 student5 victims taken in by Trump’s scheme (Dkt. 458 at 2); and (iii) used a national 6 campaign speech to denigrate Makaeff – by name – as a “horrible horrible witness.” 7 See Ex. 1.2 Understandably, Makaeff wants her life back without living in fear of 8 being disparaged by Trump on national television. A. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 This Case Is About Trump’s Admittedly False Promises to Thousands of Victims, Not Just One Trump wants to make this case about anything other than his and TU’s actions, but this Court’s class certification orders confirm otherwise. See Dkts. 298, 418. Indeed, the liability phase of trial will focus on defendants’ objectively false or misleading representations in TU’s advertising and promotional campaign and thus has nothing to do with Makaeff’s motives, credibility or effort, as Trump contends. See Dkt. 458 at 2. For example, California’s Unfair Competition Law “requires only a showing that members of the public are likely to be deceived, rather than actually deceived or confused by the conduct or business practice in question,” and relief “is available without any proof of deception, reliance, or damages.”3 Dkt. 298 at 19. The same goes for California’s False Advertising Law. Id. For liability on the class claims, plaintiffs will prove Trump falsely promised to teach his secrets through his handpicked professors, and that doing so likely deceived the public. Id. 23 24 1 Defendants refer to Makaeff as “lead” plaintiff or “lead” class representative in 25 their brief, but she has never sought, nor been appointed by this Court, as either. She is one of four equal class representatives appointed at the same time. See Dkt. 298. 26 2 Unless otherwise noted, references to “Ex.” are to the Exhibits attached to the Declaration of Rachel L. Jensen (“Jensen Decl.”), filed concurrently herewith. 27 3 Here, and throughout, citations and quotation marks are omitted, and emphasis 28 supplied, unless otherwise noted. 1124391_1 -2- 3:10-cv-0940-GPC(WVG) Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 5 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1124391_1 1. Trump Recently Confessed that He Did Not “Handpick” the Live Events Instructors Trump recently testified that he is an influential person, who wants to be perceived as reliable and trustworthy. See Ex. 2 at 377:22-379:8. Trump admitted that he promoted TU to influence students to enroll, including by starring in a nationwide ad campaign and promotional video that was linked to mass email blasts and played at the start of preview seminars. See id. at 388:4-9, 391:17-392:7. In the video, Trump promises that he handpicked all of TU’s instructors. This promise was consistent with TU’s ads, which were approved by Trump (id. at 280:5-16). Those ads promised consumers they would “[l]earn from Donald Trump’s handpicked experts” at the seminars. See, e.g., Ex. 3 (TU 62091). Trump recently confessed under oath that he did not handpick a single TU live events instructor (Ex. 2 at 135:2-4, 135:15-136:6, 137:24-139:4, 140:10-15, 476:16477:10); and that he personally did nothing to confirm their purported qualifications (id. at 240:10-23). Trump could not identify a single live events instructor or mentor by name or pick one out of a photo lineup. Id. at 100:14-111:20, 117:3-4, 118:14119:13, 120:19-25, 122:11-21, 124:12-125:5, 210:21-211:1, 235:7-17, 240:10-13, 280:24-281:17. Similarly, Trump confessed that he neither “certif[ied]” the mentors, as promised, nor did anything to confirm their qualifications. Id. at 234:24-235:6, 240:10-23, 247:24-249:5, 250:8-253:7, 300:3-25. Had Trump cared to do any due diligence on his “handpicked” experts, he would have discovered they were primarily high-pressure salesmen, not real estate experts. See Ex. 2 at 412:25-413:1, 427:6-430:7; Ex. 4, ¶¶5-7. Trump would have discovered that TU’s top producer, James Harris, who held himself out as having a personal relationship with Trump, was a convicted felon. See, e.g., Ex. 5. But because Trump had no hand in TU’s hiring process and did not even meet Harris (see, e.g., Ex. 2 at 428:1-430:7), people with no real estate experience, like Michael Sexton, made these decisions. See Ex. 2 at 154:21-155:16. As he was not involved, Trump -3- 3:10-cv-0940-GPC(WVG) Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 6 of 15 1 conceded Harris could have “slipped through the cracks.” See Ex. 2 at 426:14-24. 2 Harris is not a one-off example. At his deposition, Trump was confronted with 3 scripted misrepresentations delivered by each of the primary TU live events 4 instructors – including Steve Goff, Gerald Martin, and Keith Sperry – all claiming to 5 be close to Trump. See Ex. 2 at 329:4-333:10; see Exs. 6, 8-9, 13. One-by-one, 6 Trump admitted he did not know them, failed to interview or otherwise screen them, 7 and acknowledged that too could have “slipped through the cracks.” See, e.g., Ex. 2 at 8 425:2-427:5. So-called “top Trump certified” mentor, Kerry Lucas, was so 9 unqualified (he had never bought or sold real estate before being hired by TU in 10 2009) that, while watching Lucas’s deposition video, Trump spontaneously remarked 11 “he defrauded us,” that he should “sue him,” and his only explanation was that Lucas 12 “probably” embellished his record to the people who hired him. See Ex. 10; Ex. 2 at 13 412:8-415:12, 414:2-14; see also Ex. 11 at 48:5-23. Trump’s testimony is oblivious to 14 the fact that he had assured student-victims that he was the person doing the hiring as 15 he “handpicked” everyone. 16 Nothing in Makaeff’s trial testimony could provide Trump with a defense to 17 these misrepresentations, as she has no knowledge of the actual inner-workings of TU. 18 19 20 21 22 23 24 25 26 27 28 1124391_1 2. Trump Recently Confessed that He Was Not Involved in the Live Events Classes In contrast to Trump’s promises made in his promotional video that, if students could not “learn from me” and his handpicked instructors, they would not make it “in terms of success,” he recently confessed under oath that, “I wasn’t involved in the – in the classes.” See Ex. 2 at 185:25-186:20, 187:19-188:2, 216:8-11, 228:10-24, 282:520. At his deposition, Trump also confessed that he had no involvement in the creation or review of the materials presented at the live events (id. at 312:8-313:16, 316:3-11, 317:7-14); he did not know the instructors or what they were supposedly teaching or representing to student-victims (id. at 228:19-24, 407:4-8, 477:11-478:10); and he did not run TU (id. at 389:2-3). Again, nothing in Makaeff’s trial testimony -4- 3:10-cv-0940-GPC(WVG) Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 7 of 15 1 will provide Trump with a defense to these facts about the falsity of Trump’s 2 promotional statements. 3. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1124391_1 Trump Recently Confessed that He Knew About the 2005 NYSED Investigation into TU In the same video that Trump used to influence students to enroll in TU, he held out TU as an elite university comparing favorably to his alma mater, Wharton. Yet, as he confessed at his deposition, Trump was aware of the issues concerning the illegal use of the “university” moniker for years prior to changing the name. See Ex. 2 at 273:3-277:25. Makaeff’s trial testimony could not be expected to provide Trump a defense to these facts. B. Trump’s Testimony Undercuts His “Happy Student” Defense Defendants’ primary, if not sole, defense has been that student-victims were happy, even if deceived. But Makaeff’s early reviews, as well as those of the other purportedly happy students, only confirm the scheme’s effectiveness: “As the recent Ponzi-scheme scandals involving onetime financial luminaries like Bernard Madoff and Allen Stanford demonstrate, victims of con artists often sing the praises of their victimizers until the moment they realize they have been fleeced.” Makaeff v. Trump Univ., LLC, 715 F.3d 254, 271 (9th Cir. 2013). When Makaeff submitted the surveys and responded to questions posed on video, she was unaware of Trump’s false advertising, still hoping to receive what had been promised, and did not want to risk alienating the people she hoped would help her. See, e.g., Dkt. 17-2 at 2-3. Trump knows the “surveys” were not anonymous, and that students were promised networking opportunities. See Ex. 2 (1/21/16 DJT Tr.) at 452:18-454:11. As a business man who has donated generously to politicians, Trump understands the importance of not biting the hand that feeds. Id. at 454:23-471:4. And so he explains his past praise for politicians he now condemns as a natural consequence of speaking as businessman anticipating the need for assistance and because he later learned more about these individuals. Id.; Ex. 12. Trump’s own testimony confirms the -5- 3:10-cv-0940-GPC(WVG) Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 8 of 15 1 unreliability of positive surveys completed when student-victims were anticipating the 2 need for assistance and before they knew the truth.4 3 Further, Trump confessed that he had real-time awareness of millions of dollars 4 in refunds he had paid long before any lawsuits because it “was the honorable thing to 5 do” and explained that TU was more like the Home Shopping Network than Wharton. 6 See Ex. 2 at 432:11-437:19, 479:5-19. It is apparent that self-preservation, not honor, 7 motivated Trump to pay off some of his victims. But, once exposed, Trump’s sense of 8 “honor” morphed into bullying, resulting in an $800,000 award against the 9 “university” he used to sue Makaeff. C. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendants Have No Legitimate Legal Interest that Will Be Prejudiced by Makaeff’s Withdrawal Trump acknowledges that Rule 41 allows a plaintiff to withdraw absent legal prejudice. See Dkt. 458 at 9. Indeed, dismissal should be granted absent “clear legal prejudice, other than the prospect of a subsequent suit on the same facts.” In re Morning Song Bird Food Litig., No. 3:12cv1592-JAH-RBB, 2015 U.S. Dist. LEXIS 176519, at *5 (S.D. Cal. Nov. 19, 2015). “[L]egal prejudice” means “prejudice to some legal interest, some legal claim, some legal argument.” Id. It is not “merely because the defendant will be inconvenienced by having to defend in another forum or where a plaintiff would gain a tactical advantage by that dismissal.’” Id. Here, defendants cannot point to one relevant legal argument that would be harmed by Makaeff’s withdrawal. Their entire argument is illogical to the point of being nearly incomprehensible: the absence Makaeff’s live trial testimony “would cripple Defendants’ ability to defend this case.” Dkt. 458 at 2. Makaeff is not even a member of the Florida or New York classes, so are defendants admitting they have no defense to those claims? What if Makaeff moved out of the country? Defendants themselves moved for summary judgment against Makaeff individually. See Dkt. 4 This is leaving aside myriad other problems with the surveys, including there are more surveys than paying student-victims, they include free seminars, and student28 victims were told they must give the instructor “all fives.” See Ex. 13 at TU 97047. 27 1124391_1 -6- 3:10-cv-0940-GPC(WVG) Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 9 of 15 1 375-1 at 4. Was this an attempt to “cripple” their defense? Defendants filed their 2 motion to get Makaeff out of this case after discovery was closed so their “we would 3 have conducted discovery differently if we had not been counting on Makaeff 4 remaining in the case” (paraphrasing) argument (Dkt. 458 at 10-11) is no more 5 credible than their other arguments. Plaintiffs are not suggesting that they would 6 submit evidence of Makaeff’s personal experience, so how could her absence from 7 trial be detrimental to the defense of the claims for which no such evidence will be 8 presented? Defendants do not attempt to answer this question because the obvious 9 answer is that Makaeff’s absence could not be detrimental to the defense of the class 10 claims in this case. They simply lack a legitimate defense – with or without Makaeff. One specific example is all it takes to discredit both defendants’ argument that 11 12 their entire defense turns on their plan to impeach Makaeff and their purported 13 impeachment evidence. Defendants accuse Makaeff of actively seeking to exploit 14 Trump’s potential Presidential campaign to fleece him and TU. Dkt. 458 at 13 15 (redacted in public filing) (citing Sealed Ex. 9).5 Defendants’ purported impeachment 16 evidence, however, impeaches only them. Far from their characterization, this email 17 chain proves that Makaeff was not actively or passively seeking to “fleece” Trump or 18 TU. The only reference to any fleecing was in Makaeff’s then-boyfriend’s email, but 19 he was not suggesting that Makaeff try to fleece Trump or TU. Rather encouraging 20 her to expose Trump’s scheme to fleece vulnerable victims: I’d really focus on the fact that they go after the elderly, recently unemployed and those desperate to improve their financial situation in a very difficult economy then fleece them for all that that they can by promising them they can make a fortune in a very high risk business that takes a ton of risk capital that almost none of their students can afford. 21 22 23 24 Jensen Decl., Ex. 14 (TU-MAKAEFF 5552). This attempt to disparage Makaeff and 25 deceive the Court epitomizes the abusive litigation tactics Trump and TU have used in 26 this case. 27 28 1124391_1 5 Plaintiff de-designated the portion of this exhibit that Trump misrepresents. -7- 3:10-cv-0940-GPC(WVG) Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 10 of 15 In contrast to the absence of prejudice to defendants, they do not dispute the 1 2 detriment to Makaeff if she is forced to remain in the case.6 In fact, they revel in it. 3 See Dkt. 458 at 13 (“Litigation is hard. Witnesses are compelled all the time to testify 4 . . . healthy or ill.”). Defendants’ argument that the Court should disregard Makaeff’s 5 health concerns because she has suffered from them for years is as meritless as it is 6 heartless. See id. Makaeff has health issues, and the stress of this litigation has, and 7 continues to, aggravate them. There is no good reason to deny her request for relief.7 8 D. Trump’s Opposition Reinforces the Need to Protect Against Retaliation 9 Courts routinely require parties to bear their own costs and fees. See, e.g., 10 Morning Song Bird Food Litig., 2015 U.S. Dist. LEXIS 176519, at *7 (granting 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1124391_1 6 Even if this Court determines that Makaeff’s testimony somehow remains relevant, defendants can simply use her deposition testimony at trial. See Ormond v. Anthem, Inc., No. 1:05-cv-1908-TWP-TAB, 2012 U.S. Dist. LEXIS 63275, at *9 (S.D. Ind. May 4, 2012). As Judge Houston has explained, “[w]hile live testimony is preferable to deposition testimony, that alone is insufficient to constitute plain legal prejudice.” Morning Song Bird Food Litig., 2015 U.S. Dist. LEXIS 176519, at *10. Given the breadth of Makaeff’s deposition testimony, and the fact that they have already designated portions as part of their pretrial disclosures in this case (see Dkt. 450-2), defendants will suffer no legal prejudice. 7 Defendants’ delay and bad faith arguments ring hollow given the undisputed fact that, within three weeks of the Court’s Order Scheduling Pretrial Proceedings, Makaeff requested defendants’ concurrence in her withdrawal from the case. See Dkt. 434; see also Dkt. 443-1. Moreover, this Court’s decision in Sherman v. Yahoo! Inc., No. 13cv0041-GPC-WVG, 2015 U.S. Dist. LEXIS 14032 (S.D. Cal. Feb. 5, 2015), cited by defendants, actually supports plaintiff’s position. There, the Court granted a motion to dismiss without prejudice, conditioned on plaintiff sitting for deposition, and refused to award any fees or costs to defendants. See id. at *22. None of the other cases cited by defendants commands a different result here. See Perdum v. Wells Fargo Bank, N.A., No. 14-cv-02477-HSG, 2015 U.S. Dist. LEXIS 122307, at *2 (N.D. Cal. Sept. 14, 2015) (court already granted a motion to dismiss); Cent. Mont. Rail v. BNSF Ry. Co., 422 F. App’x 636, 638 (9th Cir. 2011) (forum shopping); In re Flash Memory Antitrust Litig., No: C 07-0086 SBA, 2010 U.S. Dist. LEXIS 66466 (N.D. Cal. June 10, 2010) (decision involved motion to amend); Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 199 (5th Cir. 1991) (magistrate had already issued an adverse recommendation against plaintiffs); Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990) (motion in individual action brought one week before trial); Robles v. Atl. Sounding Co., 77 F. App’x 274, 275-76 (5th Cir. 2003) (affirming voluntary dismissal); Lesti v. Wells Fargo Bank NA, No. 2:11-cv-695-FtM-29DNF, 2014 U.S. Dist. LEXIS 27360 (M.D. Fla. Mar. 4, 2014) (plaintiff was attempting to avoid discovery); Hancock v. Chi. Title Ins. Co., No. 3:07-CV-1441-D, 2010 U.S. Dist. LEXIS 102773, at *10 (N.D. Tex. Sept. 28, 2010) (lack of jurisdiction); In re Vitamins Antitrust Litig., 198 F.R.D. 296, 297 (D.D.C. 2000) (granting motion conditioned on outstanding discovery); Buller v. Owner Operator Indep. Driver Risk Retention Group, Inc., 461 F. Supp. 2d 757 (S.D. Ill. 2006) (granting motion). -8- 3:10-cv-0940-GPC(WVG) Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 11 of 15 1 dismissal without prejudice and denying fees and costs). That is all Makaeff asks in 2 seeking an order requiring both sides to bear their own costs and explicitly providing 3 that her withdrawal does not constitute grounds for later action by Trump. Makaeff’s proposed order does not constitute a prior restraint on defendants. 4 5 Unlike defendants’ cited cases, the proposed order does not require Trump to obtain 6 leave of court before filing a claim.8 See Molski v. Evergreen Dynasty Corp., 500 7 F.3d 1047, 1050 (9th Cir. 2007) (vexatious litigant pre-filing order); Cromer v. Kraft 8 Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004) (enjoining further motions). 9 Defendants’ reliance on Molski is misplaced because, there, the Ninth Circuit 10 affirmed an order finding plaintiff to be “a vexatious litigant” and requiring “leave of 11 the court” before filing another claim in that district. See 500 F.3d at 1050, 1062. 12 Thus, even if the proposed order were somehow deemed a pre-filing injunction (which 13 it is not), it would still be appropriate given that defendants had notice and an 14 opportunity to be heard, and the record is ample to find that Trump directed frivolous 15 litigation against Makaeff and has threatened her counsel. See id. at 1057. E. 16 17 18 19 20 21 22 23 24 25 26 Makaeff Should Not Bear the Burden and Risk of Delay as to the Anti-SLAPP Fees and Costs Defendants’ opposition provides no basis to delay entry of partial final judgment as to Makaeff’s previously (and voluntarily) dismissed individual claims and the Anti-SLAPP Orders. To the contrary, judgment should be entered so that Makaeff can commence her collection efforts. This outcome favors “judicial administrative interests as well as the equities involved.” Curtiss-Wright Corp. v. Gen’l Elec. Co., 446 U.S. 1, 8 (1980). First, in weighing judicial interests, the claims at issue are separable from the remaining class claims. See Curtiss-Wright, 446 U.S. at 8. Trump’s counterclaim and anti-SLAPP fees are distinct and separable, as the SLAPP suit has no effect on the other class representatives or the class members they 8 Logan v. Zimmerman Brush Co., 455 U.S. 422, 429, 434 (1982), is irrelevant as it involved whether a state agency could dismiss an employment claim based on the 28 running of a deadline when the agency failed to follow its own procedures. 27 1124391_1 -9- 3:10-cv-0940-GPC(WVG) Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 12 of 15 1 represent.9 See Dkt. 298. This is why Judge Gonzalez stayed the counterclaim during 2 Makaeff’s anti-SLAPP appeal, but not the class claims. Dkt. 58 at 4. The dismissed 3 claims are also separable as defendants stipulated to dismissal with no right to fees or 4 costs. See Dkts. 389, 394. Thus, neither side contests those claims, and there is no 5 risk of appeal. See Wood v. GCC Bend, LLC, 422 F.3d 873, 881-82 (9th Cir. 2005). 6 The equities also urge entry of partial final judgment. See United States v. 7 Distribuidora Batiz CGH, S.A. DE C.V., No. 07cv370-WQH-JMA, 2009 U.S. Dist. 8 LEXIS 69844, at *21 (S.D. Cal. Aug. 10, 2009). TU has been dormant for five years 9 and is a bankruptcy risk. See Curtiss-Wright, 446 U.S. at 12-13 (concerns about 10 defendant’s financial condition weighs in favor of finding no just reason for delay); 11 Capital Distrib. Servs. v. Ducor Express Airlines, Inc., 462 F. Supp. 2d 354, 358 12 (E.D.N.Y. 2006) (dissipation may cause “‘irreparable injury’”). The anti-SLAPP 13 statute is intended to protect individuals like Makaeff from retaliatory suits, and that 14 purpose would be undermined if Makaeff were forced to bear more risk of a TU 15 bankruptcy filing from more delay. See Language Line Servs. v. Language Servs. 16 Assoc., LLC, No. C10-02605 JW, 2012 U.S. Dist. LEXIS 7494, at *9 (N.D. Cal. Jan. 17 23, 2012) (prevailing party should not bear burden of delay). 18 III. CONCLUSION 19 Makaeff respectfully requests that the Court grant her motion in its entirety. 20 DATED: March 3, 2016 Respectfully submitted, 21 ROBBINS GELLER RUDMAN & DOWD LLP 22 s/ Rachel L. Jensen RACHEL L. JENSEN 23 24 25 26 9 Even if a claim and counterclaim share some factual basis, that does not preclude 27 partial final judgment. See, e.g., Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 797-98 (9th Cir. 1991) (“‘The Rule 54(b) claims do not have to be separate from and independent 28 of the remaining claims.’”). 1124391_1 - 10 - 3:10-cv-0940-GPC(WVG) Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 13 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ROBBINS GELLER RUDMAN & DOWD LLP PATRICK J. COUGHLIN JASON A. FORGE RACHEL L. JENSEN BRIAN E. COCHRAN 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) ROBBINS GELLER RUDMAN & DOWD LLP DANIEL J. PFEFFERBAUM Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: 415/288-4545 415/288-4534 (fax) ROBBINS GELLER RUDMAN & DOWD LLP MAUREEN E. MUELLER 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: 561/750-3000 561/750-3364 (fax) ZELDES HAEGGQUIST & ECK, LLP AMBER L. ECK HELEN I. ZELDES ALREEN HAEGGQUIST AARON M. OLSEN 225 Broadway, Suite 2050 San Diego, CA 92101 Telephone: 619/342-8000 619/342-7878 (fax) Class Counsel 21 22 23 24 25 26 27 28 1124391_1 - 11 - 3:10-cv-0940-GPC(WVG) Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 14 of 15 1 2 CERTIFICATE OF SERVICE I hereby certify that on March 3, 2016, I authorized the electronic filing of the 3 foregoing with the Clerk of the Court using the CM/ECF system which will send 4 notification of such filing to the e-mail addresses denoted on the attached Electronic 5 Mail Notice List, and I hereby certify that I caused to be mailed the foregoing 6 document or paper via the United States Postal Service to the non-CM/ECF 7 participants indicated on the attached Manual Notice List. 8 I certify under penalty of perjury under the laws of the United States of America 9 that the foregoing is true and correct. Executed on March 3, 2016. 10 11 s/ Rachel L. Jensen RACHEL L. JENSEN 14 ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Telephone: 619/231-1058 619/231-7423 (fax) 15 E-mail: 12 13 rachelj@rgrdlaw.com 16 17 18 19 20 21 22 23 24 25 26 27 28 1124391_1 3:10-cv-0940-GPC(WVG) CM/ECF - casdPage 1 of 1 Case 3:10-cv-00940-GPC-WVG Document 462 Filed 03/03/16 Page 15 of 15 Mailing Information for a Case 3:10-cv-00940-GPC-WVG Makaeff v. Trump University, LLC et al Electronic Mail Notice List The following are those who are currently on the list to receive e-mail notices for this case. • Brian E. Cochran bcochran@rgrdlaw.com,e_file_sd@rgrdlaw.com • Patrick J Coughlin patc@rgrdlaw.com,e_file_sd@rgrdlaw.com,susanm@rgrdlaw.com • Amber Lee Eck ambere@zhlaw.com,winkyc@zhlaw.com,robyns@zhlaw.com • Jason A Forge jforge@rgrdlaw.com,tholindrake@rgrdlaw.com,e_file_sd@rgrdlaw.com • Jeffrey L. Goldman jgoldman@bbwg.com • Rachel L Jensen rjensen@rgrdlaw.com,llendzion@rgrdlaw.com,mbacci@rgrdlaw.com,e_file_sd@rgrdlaw.com,KLavelle@rgrdlaw.com • David Lee Kirman dkirman@omm.com,sbrown@omm.com • Jill Ann Martin jmartin@trumpnational.com,lvincent@trumpnational.com • Thomas R. Merrick tmerrick@rgrdlaw.com • Maureen E. Mueller mmueller@rgrdlaw.com,e_file_sd@rgrdlaw.com • Aaron M. Olsen aarono@zhlaw.com,winkyc@zhlaw.com • Daniel M. Petrocelli dpetrocelli@omm.com • Daniel Jacob Pfefferbaum dpfefferbaum@rgrdlaw.com Manual Notice List The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients. • (No manual recipients) https://ecf.casd.uscourts.gov/cgi-bin/MailList.pl?126570711712026-L_1_0-1 3/3/2016