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 OBJECTIONS TO BURMESTER DECLARATION IN OPPOSITION TO MOTION FOR LEAVE TO FILE TAC Case No. CV 10-9198 JVS (RNBx) 1 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP CHARLES N. FREIBERG (SBN 70890) BRIAN P. BROSNAHAN (SBN 112894) JACOB N. FOSTER (SBN 250785) 101 California Street, Suite 2300 San Francisco, California 94111 Telephone: (415) 421-6140 Facsimile: (415) 398-5030 LEVINE & MILLER HARVEY R. LEVINE (SBN 61879) CRAIG A. MILLER (SBN 116030) LEVINE & MILLER 550 West C Street, Suite 1810 San Diego, CA 92101-8596 Telephone: (619) 231-9449 Facsimile: (619) 231-8638 Attorneys for Plaintiffs JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JOYCE WALKER, KIM BRUCE HOWLETT, and MURIEL SPOONER, on behalf of themselves and all others similarly situated, Plaintiffs, v. LIFE INSURANCE COMPANY OF THE SOUTHWEST, a Texas corporation, Defendant. CLASS ACTION CASE NO.: CV 10-9198 JVS (RNBx) Formerly Case No.: 3:10-cv -04852 JSW from Northern District of California PLAINTIFFS’ EVIDENTIARY OBJECTIONS TO THE DECLARATION OF STEPHANIE BURMESTER IN OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT Judge James V. Selna Date: March 4, 2012 Time: 1:30 p.m. Courtroom: 10C Case 2:10-cv-09198-JVS-RNB Document 395 Filed 02/15/13 Page 1 of 3 Page ID #:17700 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 OBJECTIONS TO BURMESTER DECLARATION IN OPPOSITION TO MOTION FOR LEAVE TO FILE TAC Case No. CV 10-9198 JVS (RNBx) 2 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111 Plaintiffs Joyce Walker, Kim Bruce Howlett, and Muriel Spooner (“Plaintiffs”) hereby object to portions of the Declaration of Stephanie Burmester, submitted by Defendant Life Insurance Company of the Southwest (“LSW”) in opposition to Plaintiffs’ motion for class certification (Dkt. 261), on which LSW relies in opposition to Plaintiffs’ motion for leave to file a Third Amended Complaint: Evidence Grounds for Objection(s) 1. Page 7, ¶20: “National Life Group has, in the past, offered other insurance products that have included non-guaranteed elements which became available after the policy had been in force over a period of years. In every such instance I am aware of, when the relevant period of years elapsed, the National Life Group did in fact provide those non- guaranteed elements to its policyholders.” 1. Lacks foundation. Ms. Burmester provides no basis for how she knows about these “other insurance products,” the “non- guaranteed elements” they included, whether those elements were provided to policyholders, and what kinds of policies they are. She implicitly acknowledges her lack of foundation regarding the pricing practices of the National Life Group by limiting her comments to “every such instance I am aware of.” FRE 602. 2. Violation of Rules 26(e) and 37(c). Ms. Burmester’s testimony about non-guaranteed elements for these policies, and LSW’s reliance thereon, violates Rules 26(e) and 37(c) because LSW has refused to produce this kind of information in response to discovery timely and properly propounded by Plaintiffs or in response to informal requests by Plaintiffs during the Rule 7-3 meet and confer in connection with this motion. 3. Vague, ambiguous, conclusory. Fails to specify what the “other insurance products” are, whether they were LSW policies, what the “non-guaranteed elements” are that they included, when “in the past” these products were offered, and how many and which “instances” of which she is aware. FRE 403 Case 2:10-cv-09198-JVS-RNB Document 395 Filed 02/15/13 Page 2 of 3 Page ID #:17701 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 OBJECTIONS TO BURMESTER DECLARATION IN OPPOSITION TO MOTION FOR LEAVE TO FILE TAC Case No. CV 10-9198 JVS (RNBx) 3 KASOWITZ, BENSON, TORRES & FRIEDMAN LLP 101 CALIFORNIA STREET, SUITE 2300 SAN FRANCISCO, CALIFORNIA 94111 Evidence Grounds for Objection(s) and 611(a). 4. Irrelevant. Whether National Life provided non-guaranteed elements associated with “other insurance products” is irrelevant to LSW’s intent to provide the non-guaranteed elements illustrated for Paragon and Provider. That National Life provided certain future non-guaranteed benefits on “other insurance products” also is irrelevant to LSW’s false certifications to the DOI concerning the “same or similar forms,” and to the materiality and unfairness of LSW’s nondisclosure of the fact that no holder of a Paragon or Provider policy, or any similar policy, had ever received the non-guaranteed benefits illustrated. FRE 401 and 402. DATED: February 15, 2013 KASOWITZ BENSON TORRES & FRIEDMAN LLP By: s/Brian P. Brosnahan Brian P. Brosnahan Case 2:10-cv-09198-JVS-RNB Document 395 Filed 02/15/13 Page 3 of 3 Page ID #:17702