1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HONMA GOLF U.S., LTD., Case No.: 21-CV-1131-CAB-WVG

12 Plaintiff,

ORDER ON DEFENDANT’S

13 v. EMERGENCY MOTION/ EX PARTE

APPLICATION FOR ORDER

14 SADDLE CREEK CORPORATION,

AUTHORIZING IMMEDIATE

15 Defendant. INSPECTION 16 17 I. INTRODUCTION 18 Pending before the Court is Saddle Creek Corporation’s (“Defendant”) July 16, 2021 19 Emergency Motion/ Ex Parte Application for Order Authorizing Immediate Inspection (“ex 20 parte application”). (Doc. No. 11.) Honma Golf U.S., Ltd. (“Plaintiff”) timely opposed 21 Defendant’s ex parte application on July 19, 2021 (“Opposition”). (Doc. No. 12.) The 22 Court has reviewed and considered the entirety of Defendant and Plaintiff’s (“Parties”) 23 respective submissions. Having done so, the Court DENIES Defendant’s ex parte 24 application on procedural and substantive grounds and explains below. 25 / / / 26 / / / 27 / / / 28 / / / 1 II. BACKGROUND 2 This is a breach of contract dispute that Defendant removed to this Court on June 3 17, 2021. (Doc. No. 1.) Plaintiff brings three claims against Defendant: (1) breach of 4 contract; (2) conversion; and (3) declaratory relief for Defendant’s alleged failure to 5 securely store Plaintiff’s golf products, consistent with the Parties’ warehouse services 6 agreement. (Doc. No. 1, Exhibit (“Exh.”) B.) Plaintiff alleges it has suffered damages 7 exceeding one-million dollars after its high-value golf products disappeared from 8 Defendant’s warehouse. (Id.; Doc. No. 12, 5:6-11.) Defendant disputes it had any role in 9 the golf products’ disappearance. (Doc. No. 6.) The California Highway Patrol (“CHP”) 10 initiated an investigation into the matter, which remains ongoing. (Doc. No. 11, ¶ 5.) To 11 date, the CHP has recovered over 700 missing golf clubs (“recovered inventory”) and, in 12 late June 2021, returned them to Plaintiff. (Id.; Doc. No. 12, 5:12-18.) 13 On July 2, 2021, Defendant requested to conduct a joint inspection of the recovered 14 inventory with Plaintiff. (Id., ¶ 6.) On July 9, 2021, Plaintiff responded by agreeing to a 15 joint inspection on two conditions: (1) the Parties conduct an early conference pursuant to 16 Rule 26(f) of the Federal Rules of Civil Procedure (“the Rules”); and (2) Defendant provide 17 a request for inspection pursuant to Rule 34 of the Rules. On July 14, 2021, Defendant 18 rejected Plaintiff’s proposal and advised it would seek relief from the Court. (Doc. No. 11- 19 1, Declaration (“Decl.”) of John F. Horvath, ¶ 5.) In its Opposition, Plaintiff adds that 20 “under no circumstance, however, did Saddle Creek’s counsel indicate that he would seek 21 ex parte relief or that he would file an ex parte application two days later.” (Doc. No. 12, 22 6:6-13.) Defendant filed its ex parte application on July 16, 2021, giving rise to the instant 23 motion practice. (Doc. No. 11.) 24 III. LEGAL STANDARD 25 Ex parte proceedings are exclusively reserved for emergency circumstances. Langer 26 v. McHale, 2014 WL 4922351, at *2 (S.D. Cal. Aug. 20, 2014). Because ex parte 27 applications seek to bypass regular noticed motion procedures, the movant must establish 28 a basis for giving the application priority. Kashani v. Adams, 2009 WL 1068862 *2 (S.D. 1 Cal. Apr. 21, 2009) (citing S.D. Cal. Civ. R. 7.1(e)). Accordingly, ex parte applications 2 will be granted only upon “an adequate showing of good cause or irreparable injury to the 3 party seeking relief.” AF Holdings LLC v. Doe, 2012 WL 5304998, at *3 (S.D. Cal. Oct. 4 24, 2012) (citing Clark v. Time Warner Cable, 2007 U.S. Dist. LEXIS 100716, at *2, 2007 5 WL 1334965 (C.D. Cal. May 3, 2007) and Mission Power Eng'g Co. v. Cont'l Cas. Co., 6 883 F.Supp. 488, 492 (C.D. Cal. Mar. 14, 1995)). Thus, if the movant fails to show 7 irreparable harm will result “if the motion is not heard on an expedited schedule and that it 8 either did not create the circumstances warranting ex parte relief or that the circumstances 9 occurred as a result of excusable neglect,” the court’s inquiry ends. Al Otro Lado, Inc. v. 10 Wolf, 2020 WL 8617490, at *1 (S.D. Cal. Dec. 7, 2020); see also Mission Power Eng’g 11 Co., 883 F. Supp. at 490 (observing “ex parte relief is rarely justified”). 12 IV. DISCUSSION 13 Both procedural and substantive grounds support Defendant’s ex parte application’s 14 denial. The Court addresses each ground in turn. As a threshold matter, Civil Local Rule 15 83.3(g)(2) requires parties seeking ex parte relief to inform their opponents “within a 16 reasonable time before the motion [is made]” they seek to obtain ex parte relief from the 17 Court. Civ. L.R. 83.3(g)(2). This Court’s Civil Chambers Rule VI emphasizes the point. In 18 particular, Civil Chambers Rule VI requires movants to submit with their ex parte 19 application “a declaration that indicates reasonable and appropriate notice to opposing 20 counsel, in accordance with Civil Local Rule 83.3g.” Hon. William V. Gallo Civil 21 Chambers Rules, Rule VI. Here, the Parties’ respective submissions confirm defense 22 counsel failed to provide Plaintiff’s counsel adequate notice of Defendant’s intent to seek 23 ex parte relief. Whether purposeful or not, defense counsel’s omission violates Local Rules 24 and this Court’s Civil Chambers Rules and procedurally precludes the Court from granting 25 Defendant’s ex parte application. 26 Even if the Court were inclined to overlook the ex parte application’s procedural 27 defect (which it is not), Defendant’s request for relief warrants denial on substantive 28 grounds. Defendant moves this Court to order the Parties to participate in an immediate 1 joint inspection of Plaintiff’s recovered property but does little to validate the urgency of 2 its request. The ex parte application fails to assert facts demonstrating there is any 3 discernable risk of spoliation of Plaintiff’s recovered inventory now, in the near future, or 4 at all. Instead, Defendant flatly rejects Plaintiff’s counsel’s proposal that the Parties engage 5 in a site inspection after an early Rule 26(f) conference and Defendant bringing a Rule 34 6 request. (Id., 3:5-7.) 7 Rather than explaining the merits of its position, Defendant simply labels Plaintiff’s 8 proposal as unreasonable and speculates it “could be a waste of the parties’ time and 9 efforts.” (Id., 3: 5-11.) From there, Defendant’s exercise in conjecture persists: “Plaintiff’s 10 attorney’s proposal could… hinder Saddle Creek’s further investigation regarding 11 circumstances surrounding their disappearance and the identities of the perpetrators.” (Id., 12 3: 12-16 [emphasis added].) Defendant further hypothesizes that, since “the allegedly 13 missing inventory allegedly includes 740 clubs that it sells in ten-piece sets for $50,000.00, 14 this Court may not have jurisdiction since it is based on diversity of citizenship and an 15 amount in controversy in excess of $75,000.00.” (Id., 3: 18-21.) In doing so, Defendant 16 fails to provide clarifying facts and legal authority to support any of these three reasons 17 underlying its request for emergency relief. 18 Supposition, without more, fails to clear the high bar Defendant must meet to 19 establish its request merits ex parte treatment. See Al Otro Lado, Inc., 2020 WL 8617490, 20 at *1 (S.D. Cal. Dec. 7, 2020) (citing Yokohama Tire Corp. v. Dealers Tire Supply, Inc., 21 202 F.R.D. 612, 613 (D. Ariz. 2001) (a party's mere “perception of the urgency” to obtain 22 relief is insufficient under the ex parte standard). Here, Defendant offers no factual basis 23 to explain what exigent circumstances have arisen such that an inspection of Plaintiff’s 24 recovered inventory is warranted within the next seven (7) days or shortly thereafter. In 25 fact, Defendant sidesteps addressing that “[Plaintiff] will preserve all of the golf clubs 26 recovered by the California Highway Patrol in a manner consistent with its obligations 27 under the Federal Rules of Civil Procedure, and Saddle Creek may inspect the clubs as part 28 of the discovery process.” (Doc. No. 12, 7:4-7.) Based on Plaintiff’s assurance to maintain 1 || the status quo, the Court sees no ascertainable risk of spoliation that would give rise to an 2 || exigent need to inspect the recovered inventory. Indeed, there is no showing that Plaintiff’ s 3 || recovered inventory is at any risk, let alone, imminent risk, of disappearance or destruction A || by Plaintiff or a third-party bad actor. In fact, Defendant’s insistence that an immediate site 5 ||inspection is warranted is belied by Plaintiff's agreement to submit to a joint inspection 6 || after two conditions are met, both of which are standard in the context of federal discovery 7 || practice. 8 V. CONCLUSION 9 For the reasons articulated above, the Court DENIES Defendant’s Emergency 10 || Motion/ Ex Parte Application for Order Authorizing Immediate Inspection. (Doc. No. 11.) 11 ||Dated: July 26, 2021 | Se 12 3 Hon. William V. Gallo United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28