1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NATIONAL CASUALTY COMPANY, Case No.: 18-CV-1292 JLS (KSC)

12 Plaintiff,

ORDER: (1) DENYING

13 v. DEFENDANT’S EX PARTE

APPLICATION AND DENYING AS

14 NATIONAL STRENGTH AND

MOOT THE NSCA’S MOTION TO

CONDITIONING ASSOCIATION,

15 FILE DOCUMENTS UNDER SEAL, Defendant. (2) REQUESTING ADDITIONAL 16

BRIEFING, AND (3) CONTINUING

17 NATIONAL STRENGTH AND HEARING

CONDITIONING ASSOCIATION,

18 Counter-Claimant, (ECF Nos. 49, 56, 100, 102, 103) 19 v. 20 21 NATIONAL CASUALTY COMPANY, 22 Counter-Defendant. 23

24 Presently before the Court are Plaintiff/Counter-Defendant National Casualty 25 Company’s Motion for Summary Judgment (ECF No. 49) and a Motion for Partial 26 Summary Judgment filed by Defendant/Counter-Claimant National Strength and 27 Conditioning Association (“NSCA”) (ECF No. 56) (together, the “Motions for Summary 28 Judgment”), which are set to be heard on June 11, 2020, see ECF No. 100, as well as the 1 NSCA’s Ex Parte Application for Leave to File Sur-Reply to Respond to Erroneous 2 Statements in NCC’s Reply in Support of Its Motion for Summary Judgment (“Ex Parte 3 App.,” ECF No. 102) and Motion for Order to Seal Its Sur-Reply in Support of Its Motion 4 for Partial Summary Judgment (“Mot. to Seal,” ECF No. 103) and NCC’s Opposition to 5 the Ex Parte Application (“Ex Parte Opp’n,” ECF No. 105). Having carefully reviewed 6 the Parties’ arguments and the law, the Court DENIES the NSCA’s Ex Parte Application, 7 DENIES AS MOOT the NSCA’s Motion to Seal, ORDERS the Parties to submit 8 additional briefing on the Motions for Summary Judgment, and CONTINUES the hearing 9 on the Motions for Summary Judgment to accommodate the additional briefing requested 10 by the Court. 11 THE NSCA’S EX PARTE APPLICATION AND MOTION TO SEAL 12 Approximately two months after NCC filed its reply in support of its Motion for 13 Summary Judgment, see Ex Parte Opp’n at 3; see also ECF No. 85, the NSCA requests 14 leave to file a sur-reply “to respond to erroneous statements made in . . . National Casualty 15 Company’s Reply.” Ex Parte App. at 1. As NCC notes, see Ex Parte Opp’n at 2, “[c]ourts 16 generally view motions for leave to file a sur-reply with disfavor,” although “permitting 17 the filing of a sur-reply is within the discretion of the district court,” but “only where a 18 valid reason for such additional briefing exists.” Whitewater W. Indus., Ltd. v. Pac. Surf 19 Designs, Inc., No. 317CV01118BENBLM, 2018 WL 3198800, at *1 (S.D. Cal. June 26, 20 2018) (quoting Johnson v. Wennes, No. 08-cv-1798, 2009 WL 1161620, at *2 (S.D. Cal. 21 April 28, 2009)) (citing Schmidt v. Shah, 696 F. Supp. 2d 44, 60 (D.D.C. 2010); Hill v. 22 England, No. CVF05869RECTAG, 2005 WL 3031136, at * 1 (E.D. Cal. Nov. 8, 2005)). 23 Here, NCC made an error concerning the pagination of the NSCA’s exhibits and 24 cited contrary testimony from its corporate designee concerning to whom NCC would defer 25 in deciding whether there exist reasonable grounds for the NSCA to appeal in the 26 underlying action. See Ex Parte App. at 2–4. To the extent they are material, the Court is 27 capable of reviewing those portions of Mr. Rogissart’s testimony cited by both the NSCA 28 and NCC; accordingly, “the Court finds that [the NSCA]’s request for leave to file a sur- 1 reply is merely an attempt to have the last word on this issue,” which “is precisely why 2 Courts so thoroughly disfavor requests to file sur-replies.” See Whitewater W. Indus., 2018 3 WL 3198800, at *1. Accordingly, the Court DENIES the NSCA’s Ex Parte Application 4 and DENIES AS MOOT its attendant Motion to Seal. 5 REQUEST FOR ADDITIONAL BRIEFING AND CONTINUANCE 6 Although the Parties already have filed voluminous briefs regarding their pending 7 Motions for Summary Judgment, see ECF Nos. 49, 55, 56, 65, 68, 71, 82, 83, 85, 88, 95, 8 96, 98, the Court believes that further briefing on the following discrete issues would assist 9 the Court in preparing for the hearing on the Motions and, ultimately, its determination of 10 them. Specifically, the Court is interested in (1) the sufficiency of the reservation of rights 11 letter from Carolyn Kanalos of K&K Insurance to Thomas James dated May 16, 2014, 12 particularly the necessity of the insurer explicitly informing the insured that there exists a 13 conflict of interest and of the insured’s right to independent counsel; (2) whether breach of 14 the duty to defend resulting from the failure to provide independent counsel in a conflict- 15 of-interest situation gives rise to a cause of action for damages or for estoppel; (3) who, if 16 anyone, bears the burden of establishing that there would have been a more favorable 17 outcome but-for any such breach of the duty to defend resulting from the failure to provide 18 independent counsel in a conflict-of-interest situation; and (4) the preclusive effect, if any, 19 of a final judgment following appeal regarding the issue and/or terminating sanctions 20 CrossFit, Inc. v. National Strength and Conditioning Association, No. 3:14-CV-1191 JLS 21 (KSC) (S.D. Cal. filed May 12, 2014). 22 Accordingly, the Court ORDERS ADDITIONAL BRIEFING, not to exceed ten 23 (10) pages per side, to be filed on or before fourteen (14) days from the date on which this 24 Order is electronically docketed. To accommodate the additional briefing requested by the 25 / / / 26 / / / 27 / / / 28 / / / 1 ||Court, the Court CONTINUES the hearing on the Motions for Summary Judgment to 2 || July 2, 2020 at 1:30 p.m. 3 IT IS SO ORDERED. 4 5 ||Dated: June 4, 2020 psi L. Lo meeaitie- 6 on. Janis L. Sammartino United States District Judge

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