1 SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 COUNTY OF LOS ANGELES

3 DEPARTMENT 322 HON. WILLIAM F. HIGHBERGER, JUDGE
4
5 ROBERT NAIRN, ET AL., )
)
6 PLAINTIFFS, )
)
7 VS. ) NO. BC606667
)
8 CITY NATIONAL BANK, ET AL., )
)
9 DEFENDANTS. )
__________________________________)
10
11 REPORTER'S TRANSCRIPT OF PROCEEDINGS
12 MONDAY, MARCH 13, 2017
13
14 APPEARANCES:
15 FOR THE PLAINTIFFS:
16 WARD & HAGEN LLP
BY: STEVEN M. NUNEZ, ESQ.
17 440 STEVENS AVENUE
SUITE 350
18 SOLANA BEACH, CALIFORNIA 92075
19 AND
20 LAW OFFICES OF JULIO J. RAMOS
BY: JULIO J. RAMOS, ESQ.
21 35 GROVE STREET
SUITE 107
22 SAN FRANCISCO, CALIFORNIA 94102
(COURTCALL)
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25 (APPEARANCES ON THE NEXT PAGE)
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27
LINDA LEE, CSR NO. 13568
28 COURT REPORTER PRO TEMPORE

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 1 APPEARANCES: (CONTINUED)
2 FOR THE DEFENDANT CITY NATIONAL BANK:
3 MCKOOL SMITH HENNIGAN
BY: MICHAEL H. SWARTZ, ESQ.
4 JEANNE E. IRVING, ESQ.
(COURTCALL)
5 300 SOUTH GRAND AVENUE
SUITE 2900
6 LOS ANGELES, CALIFORNIA 90071
7
FOR THE FITZWILLIAMS DEFENDANTS:
8 (OBSERVING)
9 BLECHER COLLINS & PEPPERMAN
BY: HOWARD K. ALPERIN, ESQ.
10 515 SOUTH FIGUEROA STREET
SUITE 1750
11 LOS ANGELES, CALIFORNIA 90071
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 1 CASE NUMBER: BC606667
2 CASE NAME: NAIRN VS. CITY NATIONAL BANK
3 LOS ANGELES, CALIFORNIA MONDAY, MARCH 13, 2017
4 DEPARTMENT 322 HON. WILLIAM F. HIGHBERGER, JUDGE
5 REPORTER: LINDA LEE, CSR NO. 13568
6 TIME: 9:00 A.M.
7
8 THE COURT: ON THE RECORD.
9 BC606667, NAIRN VERSUS CITY NATIONAL BANK.
10 I'LL TAKE APPEARANCES, STARTING WITH THOSE OF
11 YOU IN THE COURTROOM.
12 MR. NUNEZ: STEVEN M. NUNEZ FOR THE PLAINTIFFS.
13 MR. ALPERIN: HOWARD ALPERIN FOR BRIAN AND BETTY
14 FITZWILLIAM.
15 THE COURT: AND ON THE PHONE, COCOUNSEL FOR
16 PLAINTIFFS?
17 MR. RAMOS: JULIO RAMOS.
18 GOOD MORNING, YOUR HONOR.
19 THE COURT: AND DO I HAVE AN APPEARANCE BY COUNSEL
20 FOR CITY NATIONAL BANK?
21 MS. IRVING: YES. JEANNE IRVING ON BEHALF OF CITY
22 NATIONAL BANK.
23 THE COURT: SO A LITTLE OVER 10 DAYS AGO -- 11, I
24 GUESS, TECHNICALLY -- THE NAMED DEFENDANT'S MOTION TO
25 STRIKE WAS HEARD AND GRANTED. THERE WERE CERTAIN
26 EVIDENTIARY RULINGS WHICH WERE MEMORIALIZED IN AN
27 ORDER. I'VE REVIEWED THE CONTENTS OF THE --
28 YOU WISHING TO MAKE AN APPEARANCE, SIR?
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 1 MR. SWARTZ: MY APOLOGIES. MIKE SWARTZ. I
2 APOLOGIZE, YOUR HONOR.
3 THE COURT: NO PROBLEM. OKAY. YOUR COLLEAGUE,
4 MS. IRVING, HAS ALREADY APPEARED ON THE PHONE.
5 ON THE 2ND, I HAD DEALT WITH THE CONTENTS OF
6 THE THEN OPERATIVE PLEADING, AND I HAD DENIED A MOTION
7 FOR LEAVE TO AMEND THAT WAS MADE IN THE PAPERS. I'M
8 LOOKING AT THE PROPOSED FIRST AMENDED COMPLAINT THAT
9 HAD BEEN LODGED ON FEBRUARY 3RD OF THIS YEAR IN
10 CONNECTION WITH THE OTHERWISE LONG PENDING MOTION.
11 AND SO THERE WAS SOME QUESTION AT THE END OF
12 THE LAST PROCEEDING AS TO HOW PLAINTIFFS PROCEED --
13 WISHED TO PROCEED. OBVIOUSLY, AS TO CITY NATIONAL BANK
14 AND THE TWO FITZWILLIAM PARTIES, ONCE JUDGMENT'S
15 ENTERED, THERE WILL BE AN APPEALABLE JUDGMENT IN FRONT
16 OF THE APPELLATE TRIBUNAL.
17 BUT WHAT ARE YOUR CURRENT THOUGHTS AS TO HOW
18 YOU HOPE TO PROCEED GOING FORWARD AT THIS JUNCTURE,
19 MR. NUNEZ AND/OR MR. RAMOS?
20 MR. NUNEZ: GOOD MORNING, YOUR HONOR.
21 MY UNDERSTANDING WAS THAT YOU WERE
22 CONTEMPLATING A DISMISSAL OF THE DOES WITHOUT
23 PREJUDICE. AND I'M FINE WITH THAT.
24 THE COURT: THAT WOULD PRETTY MUCH HAPPEN ALMOST BY
25 INACTION. TO BE HONEST, I'VE CHECKED WITH GREG DRAPAC,
26 OUR SENIOR MANAGER OVER CIVIL AT THE MOSK COURTHOUSE,
27 WHO ALSO HAS SUPERVISORY DUTIES OVER OUR CIVIL
28 FUNCTIONS, AND I'VE CHECKED WITH MR. LIM WHO'S MY
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 1 JUDICIAL ASSISTANT, I.E., CLERK, WHO'S VERY EXPERIENCED
2 IN HIS OWN CAPACITY. AND IN TALKING WITH BOTH OF THEM,
3 IT'S MY IMPRESSION THAT AT LEAST IN THE LOS ANGELES
4 SUPERIOR COURT FOR UNLIMITED CIVIL MATTERS, WHEN ALL
5 THE NAMED DEFENDANTS HAVE HAD THEIR CLAIMS RESOLVED BY
6 JUDGMENT, DISMISSAL, OR OTHERWISE, THE COURT ENTERS A
7 PROCESS WE CALL THE DISPOSITION OF A CASE OR IN SOME
8 SIMPLE JARGON, DISPO, AND WE SIMPLY SHOW THE CASE AS
9 CLOSED.
10 WE DON'T ACTUALLY MAKE THE CLERICAL ENTRIES
11 DISMISSING THE DOES. WE JUST VIEW THE CASE AS
12 COMPLETED AS TO THE NAMED PARTIES. THERE WOULD BE A
13 JUDGMENT -- IT'S NOT HERE YET. I'M NOT SURE THE
14 PAPERWORK'S EVEN IN FRONT OF ME, BUT IT WILL BE
15 SHORTLY -- FROM WHICH AN APPEAL CAN BE TAKEN. BUT,
16 OTHERWISE, WE WOULD VIEW THE CASE AT THAT JUNCTURE AS
17 COMPLETED. AND, OBVIOUSLY, SINCE THERE'S NO
18 DETERMINATION THAT ANYTHING'S DONE WITH PREJUDICE, BY
19 IMPLICATION THROUGH THE INACTION, I WOULD BE OF THE
20 VIEW THAT THE LAW WOULD HAVE TO TREAT THE STATUS OF THE
21 DOES AS PARTIES WERE NEVER NAMED. I HAVE NO IDEA WHO
22 DOE 1 OR DOE 3 OR DOE 101 WAS SUPPOSED TO BE BECAUSE
23 YOUR PLEADING SAYS YOU DON'T KNOW WHO THEY ARE AS THE
24 DATE OF THE PLEADING, AND I TAKE THAT IN GOOD FAITH AS
25 BEING A TRUE STATEMENT.
26 SO UNTIL WE KNOW WHO'S SUPPOSED TO BE A DOE,
27 IT'S HARD TO FIGURE OUT WHY THEY'LL BE DISMISSED WITH
28 PREJUDICE.
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 1 MR. NUNEZ: OKAY.
2 THE COURT: SO, BASICALLY -- NOW, HOW ARE WE DOING
3 IN TERMS OF -- I'LL REPEAT THIS ALL WHEN WE'RE DONE,
4 BUT HOW ARE WE DOING IN TERMS OF HAVING A PROPER ORDER
5 ON THE ANTI-SLAPP MOTION AND/OR A JUDGMENT, MR. SWARTZ?
6 MR. SWARTZ: YOUR HONOR, I APOLOGIZE. AGAIN, I
7 SHOULD NOT HAVE BEEN LATE. WE --
8 THE COURT: NO, WE STARTED EARLY, ACTUALLY. YOU
9 WEREN'T LATE.
10 WHEN MS. IRVING APPEARED, WE THOUGHT WE HAD
11 THE FULL CAST OF CHARACTERS.
12 MR. SWARTZ: I APPRECIATE THAT. I WAS LATE, BUT I
13 APOLOGIZE.
14 WE HAVE A PROPOSED ORDER THAT MR. NUNEZ HAS
15 APPROVED TO FORM. WE HAVE A PROPOSED JUDGMENT. I HAVE
16 THOSE BOTH WITH ME. IF I'D BEEN ON TIME, I WOULD HAVE
17 HANDED THEM OUT BEFORE THIS.
18 THE COURT: HAS HE HAD A CHANCE TO REVIEW THE
19 JUDGMENT AS TO FORM?
20 MR. SWARTZ: HE HAS. SORRY, I SHOULD HAVE SAID
21 THAT, YES.
22 THE COURT: AND IS THAT ALSO AGREEABLE AS TO FORM
23 RESERVING YOUR APPELLATE RIGHTS, SIR?
24 MR. NUNEZ: MY UNDERSTANDING WAS THAT THERE WAS
25 GOING TO BE A CHANGE MADE, AND I DON'T KNOW THAT I'VE
26 SEEN THE FINAL VERSION.
27 THE COURT: WELL, LET'S MAKE SURE IT'S AGREEABLE.
28 MR. SWARTZ: YES, IT HAS BEEN MADE. YES.
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 1 MR. NUNEZ: THIS IS THE ORDER THAT WAS -- THAT ONE
2 I DID SEE --
3 MR. SWARTZ: OH, I'M SORRY. I HANDED YOU THE WRONG
4 DOCUMENT.
5 THE COURT: AND THE RULING ON THE EVIDENTIARY
6 ISSUES HAS NOW BEEN MEMORIALIZED WITH THE FILED ORDER,
7 AND I SEE IT WAS SERVED LAST FRIDAY.
8 MR. NUNEZ: IT'S ATTACHED.
9 MR. SWARTZ: IT'S ATTACHED TO THE PROPOSED ORDER.
10 THANK YOU.
11 THE COURT: SO MUCH THE BETTER.
12 I ASSUME THERE'S NO OBJECTION, MR. ALPERIN?
13 MR. ALPERIN: NONE, YOUR HONOR.
14 MR. NUNEZ: THAT'S FINE. IT APPEARS TO BE --
15 THE COURT: OKAY. HAND THEM UP AND --
16 MR. NUNEZ: MY OBJECTION HAS BEEN NOTED AND PUT IN.
17 THE COURT: GOOD. SO WE'LL ENTER JUDGMENT IN THE
18 NEXT FEW MINUTES.
19 I WOULD URGE YOU, MR. SWARTZ OR MS. IRVING, TO
20 GIVE NOTICE OF ENTRY OF JUDGMENT BECAUSE MR. NUNEZ'S
21 PHYSICAL PRESENCE IN COURT AND MR. RAMOS' APPEARANCE ON
22 THE PHONE IS NOT THE LEGAL EQUIVALENT OF NOTICE OF
23 ENTRY.
24 AND IF YOU DO THAT, THEN THE TIME TO APPEAL
25 WILL DEMONSTRABLY START TO RUN. BUT -- I MADE A LEGAL
26 RULING THAT'S REVIEWABLE DE NOVO SO YOU HAVE EVERY HOPE
27 TO FIX MY MISTAKE IN THE COURT OF APPEALS IF THEY SEE
28 IT AS YOU DO AS A MISTAKE, MR. NUNEZ. SO AT A
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 1 PERSONABLE LEVEL, I WISH YOU NOTHING BUT THE BEST
2 BECAUSE THESE ARE -- THIS WAS VERY MUCH A FIRST
3 IMPRESSION SITUATION. IT WAS A ONE-OFF FROM THE
4 HISTORICAL PATTERN OF ANTI-SLAPP RULING. SO WHILE I
5 THINK I WAS CORRECT, I WILL WAIT WITH INTEREST TO SEE
6 WHAT AN APPELLATE COURT SAYS.
7 MR. NUNEZ: OKAY.
8 THE COURT: IN THEORY, AS TO YOUR JUDGMENT,
9 MR. SWARTZ, YOU'LL EXPECT TO APPROACH THE CLERK IN THE
10 FUTURE AND HAVE HIM INTERLINEATE THE DOLLAR AMOUNT ON
11 THIS JUDGMENT, AS AND WHEN THE DAY ARRIVES.
12 YOU DIDN'T PUT IN THE BLANK, BUT MR. LIM'S
13 HANDWRITING CAN SQUEEZE IT IN SOMEWHERE.
14 MR. NUNEZ: YES, YOUR HONOR.
15 THE COURT: OKAY. SO THE JUDGMENT'S SIGNED. IT
16 WILL BE FILED IN A MOMENT. AND THE ORDER IS BEING
17 SIGNED AT THIS JUNCTURE AND WILL BE FILED.
18 AND I'LL HAVE CITY NATIONAL BANK GIVE NOTICE.
19 ANYTHING ELSE, MR. NUNEZ?
20 MR. NUNEZ: NO, YOUR HONOR.
21 THE COURT: MR. RAMOS?
22 MR. RAMOS: NO, YOUR HONOR. JUST -- I WOULD JUST
23 NOTE THAT IT WOULD -- THAT THE CASE WAS FILED AS A
24 PUTATIVE CLASS ACTION AND THE SETTLEMENT PERTAINS TO
25 THE NAMED PLAINTIFFS. THAT'S ALL I WOULD ADD, YOUR
26 HONOR.
27 THE COURT: THE SETTLEMENT.
28 MR. RAMOS: I'M SORRY. THE JUDGMENT. I'M SORRY.
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 1 I MISSPOKE.
2 THE COURT: WELL, THE CASE WAS NEVER CERTIFIED. SO
3 I THINK IT REALLY ONLY BARS THE NAMED PLAINTIFFS,
4 BECAUSE IN THE ABSENCE OF CERTIFICATION, AN EARLY
5 DISPOSITIVE RULING ONLY CUTS OFF THE RIGHTS OF THE
6 NAMED PLAINTIFFS, AND THE PUTATIVE CLASS IS JUST
7 FLOATING OUT IN THE ETHER NOT JUST CERTIFIED. SO I
8 THINK, FRANKLY, IF SOMEBODY CAME FORWARD WITH A
9 DIFFERENT CLASS ACTION AND IT GOT CERTIFIED OR
10 OTHERWISE PROCEEDED, I DON'T THINK THAT THE PUTATIVE
11 CLASSES LOST ANYTHING AS A RESULT OF THE RULINGS I MADE
12 ON THE 2ND THAT'S BEING MEMORIALIZED TODAY.
13 AGREED, MR. SWARTZ?
14 MR. SWARTZ: YES, YOUR HONOR.
15 THE COURT: OKAY. OKAY. COURT'S IN RECESS.
16 MR. NUNEZ: THANK YOU, YOUR HONOR.
17 MR. SWARTZ: THANK YOU, YOUR HONOR.
18 (PROCEEDINGS ADJOURNED AT 9:07 A.M.)
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 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 COUNTY OF LOS ANGELES
3 DEPARTMENT 322 HON. WILLIAM F. HIGHBERGER, JUDGE
4
5 ROBERT NAIRN, ET AL., )
)
6 PLAINTIFFS, )
)
7 VS. ) NO. BC606667
)
8 CITY NATIONAL BANK, ET AL., )
)
9 DEFENDANTS. )
__________________________________)
10
11 I, LINDA LEE, CSR NO. 13568, COURT REPORTER PRO
12 TEMPORE OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,
13 FOR THE COUNTY OF LOS ANGELES, DO HEREBY CERTIFY THAT THE
14 FOREGOING PAGES, 1 THROUGH 7, COMPRISE A FULL, TRUE, AND
15 CORRECT TRANSCRIPT OF THE PROCEEDINGS IN THE MATTER OF THE
16 ABOVE-ENTITLED CAUSE ON MONDAY, MARCH 13, 2017.
17 DATED THIS 13TH DAY OF MARCH 2017.
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23 <%signature%>
24 LINDA LEE, CSR NO. 13568
25 COURT REPORTER PRO TEMPORE
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