Moises Bernal, et al. v. Audrey Ovington Enterprises, Inc., et al.
Moises Bernal, et al. v. Audrey Ovington Enterprises, Inc., et al.
Case Number
24CV03487
Case Type
Hearing Date / Time
Mon, 04/14/2025 - 22:00
Nature of Proceedings
1. Plaintiffs’ Mtn to Compel Discovery Resp and Req for Sanctions as to Discovery Propounded on Janice Wilson; 2. Plaintiffs’ Mtn to Compel Discovery Resp and Req for Sanctions as to Discovery Propounded on Def Audrey Ovington Enterprises, Inc.
Tentative Ruling
Moises Bernal, et al. v. Audrey Ovington Enterprises, Inc., et al.
Case No. 24CV03487
Hearing Date: April 14, 2025
HEARING: 1. Plaintiffs’ Motion to Compel Discovery Responses and Request for Sanctions as to Discovery Propounded on Janice Wilson
2. Plaintiffs’ Motion to Compel Discovery Responses and Request for Sanctions as to Discovery Propounded on Defendant Audrey Ovington Enterprises, Inc.
ATTORNEYS: For Plaintiffs Moises Bernal and Riley Trent: Nicole K. Ricotta, Anticouni & Ricotta
For Defendants Audrey Ovington Enterprises, Inc. dba Cold
Springs Tavern, Janice Wilson (specially appearing), and Paris Trefz: Melissa J. Fassett, Price Postel & Parma, LLP
TENTATIVE RULING:
The motions are partly granted and partly denied as follows:
- Discovery Propounded on Janice Wilson
- The motion is granted as to Special Interrogatories Nos. 1, 2, 3, 4, 6, 15, 16, 18, 22, 23, 30, and 31 propounded by Moises Bernal. Janice Wilson shall provide further, complete, and code-compliant responses, absent objections, no later than April 21, 2025.
- The motion is denied as to all other Special Interrogatories.
- The motion is granted as to Requests for Production of Documents Nos. 4, 5, 9, 10, 11, 12, 14, 15, 16, 19, 20, and 25. Janice Wilson shall provide further, complete, and code-compliant responses, absent objections except as to privilege, as well as providing all responsive documents, no later than April 21, 2025.
- The motion is denied as to all other Requests for Production of Documents.
- No sanctions are imposed in favor of, or against, any party.
- Discovery Propounded on Audrey Ovington Enterprises
- The motion is granted as to Special Interrogatories Nos. 1, 2, 3, 4, and 11 propounded by Moises Bernal. Audrey Ovington Enterprises shall provide further, complete, and code-compliant responses, absent objections, no later than April 21, 2025.
- The motion is granted as to Special Interrogatories Nos. 11, 12, and 13 propounded by Riley Trent. Audrey Ovington Enterprises shall provide further, complete, and code-compliant responses, absent objections, no later than April 21, 2025
- The motion is denied as to all other Special Interrogatories.
- The motion granted as to Request for Production of Documents No. 3. Audrey Ovington Enterprises shall provide further, complete, and code-compliant responses, absent objections except as to privilege, as well as providing all responsive documents, no later than April 21, 2025.
- The motion is denied as to all other Requests for Production of Documents.
- No sanctions are imposed in favor of, or against, any party.
- Counsel are ordered to appear at the hearing to discuss a continued hearing date on the motion of Janice Wilson to Quash Service of Summons, and to set a further briefing schedule for the hearing on that motion.
Background:
This action commenced on June 20, 2024, by the filing of the unverified complaint by plaintiffs Moises Bernal (“Bernal”) and Riley Trent (“Trent”) (collectively “plaintiffs’) against defendants Audrey Ovington Enterprises, Inc. dba Cold Springs Tavern (“AOE”), Wayne Wilson (“Wayne”), and Janice Wilson (“Janice”) setting forth causes of action for: (1) Whistleblower Retaliation, (2) Wrongful Termination, (3) Intentional Infliction of Emotional Distress, (4) Failure to Pay Overtime Wages, (5) Failure to Pay all Regular Wages, (6) Failure to Pay Minimum Wage, (7) Failure to Allow and Pay for Meal Periods, (8) Failure to Allow and Pay for Rest Periods, (9) Failure to Pay Wages at Time of Termination, (10) Failure to Provide Proper Wage Statements, (11) Failure to Keep Proper Payroll Records, (12) Failure to Pay Accrued/Unused Vacation Pay, (13) Failure to Reimburse Business Expenses, and (14) Unfair Business Practices. (Note: Due to common surnames, Wayne Wilson and Janice Wilson will be referred to by their given names for clarity. No disrespect is intended.)
Plaintiffs allege that Bernal worked for AOE from March 1, 1993, until his termination from employment on January 7, 2024, for making complaints that he did not receive compensation for a vacation he took in September 2023, as well as other complaints. Trent worked for AOE from January 7, 2024, until his employment ended in March 2024. The complaint alleges that plaintiffs suffered numerous violations of the Labor Code while employed at AOE.
As relevant to the present motions, plaintiffs allege that Wayne is and was the Chief Executive Officer of AOE and that Janice is and was the Chief Financial Officer (“CFO”) of AOE.
AOE was served with the summons and complaint on June 27, 2024, by notice and acknowledgment of receipt.
Wayne was personally served on August 9, 2024, in Pataskala, Ohio. Janice was personally served on August 14, 2024, in New Albany, Ohio.
On August 19, 2024, AOE filed its answer to plaintiffs’ complaint, asserting a general denial and 24 affirmative defenses.
On September 12, 2024, Wayne and Janice separately specially appeared by filing amended motions to quash service of summons and complaint based on lack of jurisdiction.
On October 3, 2024, plaintiffs filed a request for dismissal as to Wayne. Also on October 3, 2024, plaintiffs filed an amendment to the complaint identifying defendant Doe 1 as Paris Trefz.
On November 18, 2024, at the hearing on the motion to quash, the court order included: “The hearing on Janice Wilson’s Motion to Quash Service of Summons and Complaint is continued to March 24, 2025, in order for plaintiffs to conduct jurisdictional discovery.” On February 25, 2025, as the result of an ex parte application, the continued hearing on the motion to quash was continued to April 14, 2025. The motion to quash has again continued and is now scheduled to take place on April 28, 2025.
Although the various moving papers, declarations, amended declarations, and other documents make it very difficult to decipher all of the details, the following appears to have taken place regarding discovery:
On October 11, 2024, plaintiffs served AOE with: (1) Bernal’s special interrogatories, set one, (2) Bernal’s form interrogatories, set one, (3) Trent’s special interrogatories, set one, (4) Trent’s form interrogatories, set one, and (5) Bernal’s requests for production of documents, set one. (Amended Ricotta Dec., ¶ 5.)
On November 12, 2024, AOE served its responses to the discovery requests. (Amended Ricotta Dec., ¶ 7.) The responses contain mostly objections and AOE failed to produce any documents. (Id. at ¶ 7.)
On November 21, 2024, plaintiffs served a second round of discovery on AOE. (Amended Ricotta Dec., ¶ 12.)
On December 10, 2025, pursuant to this court order of November 18, 2024, plaintiffs served discovery on specially appearing defendant Janice. (Ricotta Dec. filed on March 4, 2025, ¶ 19.) On January 13, 2025, Janice responded with objections to the discovery requests. (Id. at ¶ 21.)
Plaintiffs now move to compel further responses to Special Interrogatories served on Janice, and Requests for Production of Documents served on Janice, as well as monetary sanctions in the amount of $29,000.00.
Plaintiffs also move to compel further responses to Special Interrogatories serve on AOE, and Requests for Production of Documents served on AOE, as well as monetary sanctions in the amount of $23,968.75.
Janice and AOE oppose the motions and request sanctions.
Analysis:
1. Motion as to Janice Wilson
As an initial matter: the declarations filed in support of the motion are unhelpful to the court.
“We recognize that it is very common for [attorneys] to include argument in their declarations . . ., but it is a sloppy practice which should stop. Even at its most benign, it is a practice that forces the trial and appellate courts, and opposing counsel, to sort out the facts that are actually supported by oath from material that is nothing more than the statement of an opinion ostensibly under oath. More fundamentally, however, it makes a mockery of the requirement that declarations be supported by statements made under penalty of perjury. The proper place for argument is in points and authorities, not declarations.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3.)
The initial declaration submitted by plaintiffs’ counsel in support of the motion, including exhibits, is 199 pages long. The amended declaration, including exhibits, is 176 pages long. Both of them contain mostly improper argument rather than simply stating relevant facts regarding the current dispute and identifying documents. The declarations are convoluted, and it is difficult to even ascertain which motion they have been filed in support of.
Further, these motions should have been filed as separate motions as to each set of discovery requests. The way that the motions have been presented, and argued, have required the court to spend an inordinate amount of time sifting through the documents and sifting out relevant information, authorities, and argument. The filing of “amended” and “further amended” documents has complicated what should have been straight-forward discovery motions. Further, the notices of motion fail to state which specific discovery requests are in dispute.
Counsel is advised to keep this in mind for any future filings.
Further Responses Requested
Based on plaintiffs’ amended separate statement (which consists of 181 pages), and amendment to separate statement, plaintiffs seek further responses to the following discovery requests served on Janice:
Bernal’s Special Interrogatories Nos. 1 - 33; Bernal’s Requests for Production of Documents Nos. 1 - 29; Trent’s Special Interrogatories Nos. 1 - 22; and Trent’s Requests for Production of Documents Nos. 1 - 23.
“A trial court has discretion to continue the hearing on a motion to quash service of summons for lack of personal jurisdiction to allow the plaintiff to conduct discovery on jurisdictional issues. [Citation.] . . . Any discovery must be limited to the issue of specific personal jurisdiction based on the required minimum contacts we have identified in this opinion as relevant to the jurisdictional analysis.” (Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 30 (Burdick).)
A nonresident defendant may be subject to specific jurisdiction if three requirements are met: (1) the defendant has purposefully availed itself of forum benefits with respect to the matter in controversy; (2) the controversy is related to or arises out of the defendant's contacts with the forum; and (3) the exercise of jurisdiction would comport with fair play and substantial justice. (Burdick, supra, 233 Cal.App.4th at p. 18.)
Contrary to the argument by Janice that she is not required to respond to any of the discovery, she is required to respond to jurisdictional discovery as it is relevant to the pending motion to quash. In fact, the very case that Janice cites in support of her argument, 1880 Corp. v. Superior Court of City and County of San Francisco, supports this conclusion. “Interrogatories which are relevant to the subject matter of a motion to quash are consistent with the character of a proceeding had upon a special appearance.” (1880 Corp. v. Superior Ct. of City and County of San Francisco (1962) 57 Cal. 2d 840, 843.) However, she “cannot be required to answer any question which is not relevant to the subject matter of the motion [to quash] . . ..” (Ibid.)
Defendants’ oft repeated argument, that in continuing the hearing on Janice’s motion to quash, “the Court has already opined that Plaintiffs have not shown facts to support such jurisdiction,” is not a bar to the discovery. It is in fact exactly why the hearing was continued: To allow plaintiffs the opportunity to conduct discovery that may support jurisdiction. Further, defendants mischaracterize the courts orders, such as claiming that “the Court further recognized that any administrative tasks Ms. Wilson may have engaged in do not provide a basis for jurisdiction . . ..” (Italics added.) That is not what the court ruling reflects. The court ruling referred to “minor ministerial tasks,” and not “any” administrative tasks.
The discovery directed to Janice must be limited to specific personal jurisdiction issues.
As noted in the court’s continuance of the motion to quash, in order to allow jurisdictional discovery: “ ‘When determining whether specific jurisdiction exists, courts consider the “ ‘relationship among the defendant, the forum, and the litigation.’ ” [Citation.] A court may exercise specific jurisdiction over a nonresident defendant only if: (1) “the defendant has purposefully availed himself or herself of forum benefits” [citation]; (2) “the ‘controversy is related to or “arises out of” [the] defendant’s contacts with the forum’ ” [citation]; and (3) “ ‘the assertion of personal jurisdiction would comport with “fair play and substantial justice” ’ ” [citation][.]’ [Citation.]” (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.)
The important thing here is that the discovery is to be limited. The ruling allowing plaintiffs to conduct some jurisdictional discovery does not allow plaintiffs to inundate Janice with discovery requests that would not tend to establish jurisdiction.
Bernal’s Special Interrogatories
The court has reviewed each of the 33 special interrogatories in dispute, plaintiffs’ arguments and authorities in support of a further response, and defendants’ arguments and authorities in opposition. Some of the special interrogatories go directly to the issues of personal jurisdiction, and some over-reach by seeking discovery regarding Janice’s personal liability, and other non-jurisdictional information, before jurisdiction is established.
On the other hand, Janice’s responses consist mostly of boilerplate objections, or “objections” that are not valid objections at all, such as “assumes facts.” By way of her separate statement, Janice largely argues that she does not have to answer because she is not a party. This is discussed and rejected above.
Janice’s duties and activities for AOE, as it pertains to Cold Spring Tavern during plaintiffs’ employment, are directly relevant to the issue of personal jurisdiction.
The court finds that special interrogatories Nos. 1, 2, 3, 4, 6, 15, 16, 18, 22, 23, 30, and 31, are directly relevant to jurisdictional factors and should be sufficient to establish whether Janice is subject to personal jurisdiction in this matter. Further responses, absent objections, will be ordered.
The court finds that special interrogatories Nos. 5, 7, 8, 9, 10, 11, 12, 13, 14, 17, 19, 20, 21, 24, 25, 26, 27, 28, 29, 32, and 33, go beyond jurisdictional issues and attempt to elicit information regarding personal liability and other issues of this action. The motion will be denied as to these special interrogatories.
Trent’s Special Interrogatories
These 22 special interrogatories largely seek the same information that was requested by Bernal, but with respect to Trent. They are mostly directed at information pertaining to liability rather than jurisdiction. They further seek non-jurisdictional information regarding Janice’s financial ties to AOE. In any case, responses to the interrogatories would not assist plaintiffs in establishing jurisdiction over Janice. Any relevant jurisdictional information will be disclosed in the further responses to other discovery that will be ordered.
The motion to compel further responses will be denied. As the special interrogatories may be relevant for issues other than jurisdiction, the denial will be without prejudice to re-serve them should Janice’s motion to quash subpoena be denied.
Bernal’s Requests for Production of Documents
Responses to requests for production of document differ significantly from responses to interrogatories. A motion to compel further responses to a demand for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the burden is on the moving party to make a “fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.)
The court has reviewed each of the 29 requests for production of documents, as well as the authorities and arguments presented by counsel. Some of the requests seek information that plaintiffs have shown to be relevant to the jurisdictional issues. Some of the requests over-reach, are not reasonably limited, and seek information that is not pertinent to the issue of jurisdiction over Janice.
Plaintiffs have made a fact specific showing of relevance, as to jurisdiction, for Requests Nos. 4, 5, 9, 10, 11, 12, 14, 15, 16, 19, 20, and 25. Further responses, and production of responsive documents, will be ordered, without objections except as to privilege.
Plaintiffs have failed to make a fact specific showing of relevance, as to jurisdiction, for Requests Nos. 1, 2, 3, 6, 7, 8, 13, 17, 18, 21 and 22 (as they withdrawn from the motion per plaintiffs’ amended separate statement), 23, 24, 26, 27, 28, and 29. The motion to compel further responses to these requests will be denied.
Trent’s Requests for Production of Documents
As with the special interrogatories, Trent’s requests for production of documents largely seek the same information that was requested by Bernal, but with respect to Trent. However, they go even further by requesting protected financial information of Janice.
Any relevant jurisdictional information will be disclosed in the further responses to other discovery that will be ordered. The motion will be denied as to Trent’s requests for production of documents.
Sanctions
As the motion was only partially granted and partially denied, no sanctions will be issued. The court also notes that had it found sanctions appropriate, the amount requested far exceeds what would be reasonable for a discovery motion.
2. Motion as to Audrey Ovington Enterprises, Inc.
Unlike the motions as they pertain to Janice, the discovery directed to AOE is not limited to jurisdictional issues.
Form Interrogatories
As an initial matter: plaintiffs’ notice is defective in that it does not state which of the interrogatories are at issue. Then, to make the motion even more confusing, plaintiffs’ separate statement contains several interrogatories that are not included in the actual motion. In the motion, at page 8, lines 10 through 27, plaintiffs only list the interrogatories that are addressed below. Because plaintiffs have failed to provide the court with consistent information regarding which interrogatories are at issue, the court will only address those that are included in the motion and discussed below. AOE will not be ordered to provide further responses to any additional interrogatory that plaintiffs mention in their separate statement.
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)
“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, [and] must construe the facts before it liberally in favor of discovery. . .” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)
Code of Civil Procedure, section 2030.010 provides, “(a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by propounding to any other party to the action written interrogatories to be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.”
The special interrogatories served by Bernal that are at issue are:
No. 1. “IDENTIFY any and all individuals who served on the board of directors for Defendant Audrey Ovington Enterprises, Inc. during the time period of January 2020 until January 2024, including their positions on the board of directors, names, and contact information.”
No. 2. “IDENTIFY the dates of any and all meetings of the board of directors for Defendant Audrey Ovington Enterprises, Inc. which were held during the time period of January 2020 until January 2024.”
No. 3. “IDENTIFY the locations of any and all meetings of the board of directors for Defendant Audrey Ovington Enterprises, Inc. which were held during the time period of January 2020 until January 2024.”
No. 4. “IDENTIFY any and all individuals who attended each and every meeting of the board of directors for Defendant Audrey Ovington Enterprises, Inc. which were held during the time period of January 2020 until January 2024.”
No. 5. “IDENTIFY any and all individuals who have owned any shares, or similar equity interest, in Defendant Audrey Ovington Enterprises, Inc. at any time during the time period of January 2020 until January 2024, including their positions on the board of directors (if applicable), names, and contact information.”
No. 8. “For each individual who has owned any shares, or similar equity interest, in Defendant Audrey Ovington Enterprises, Inc. at any time during the time period of January 2020 until January 2024, IDENTIFY the amount of shares, or equity interest, the individual has owned.”
No. 9. “IDENTIFY the number of shares of stock outstanding in Defendant Audrey Ovington Enterprises, Inc. during the time period of January 2020 until January 2024.”
No. 11. “IDENTIFY any and all individuals who were employed at Defendant Audrey Ovington Enterprises, Inc. in an executive position during the time period of January 2020 until January 2024.”
Plaintiffs argument is, essentially, that the interrogatories seek information regarding alter ego liability of Janice. AOE argues that they do not seek information that would tend to prove alter ego liability and that, even if they did, it is premature to seek such information.
AOE also argues that alter-ego allegations were not pled with the requisite particularity necessary for plaintiffs to proceed on that claim. However, alter-ego allegations were made at the outset of this matter and are contained in the original complaint. AOE did not move to strike those allegations and cannot now claim that the allegations were not pled with the requisite particularity.
AOE’s argument, that plaintiffs’ discovery regarding alter ego is premature and improper, is also without merit. A party is allowed to conduct such discovery prior to judgment in the underlying case. (See, for example, Los Angeles Cemetery Ass’n v. Superior Court of Los Angeles County (1968) 268 Cal.App.2d 492, 494.) Unless otherwise limited by statute, or other authority, a plaintiff may conduct discovery relevant to their theory of liability.
However, AOE’s argument regarding financial information is correct.
“ ‘[I]ndividuals have a legally recognized privacy interest in their personal financial information.’ ” [Citation.] In the face of an objection based on privacy, the party seeking discovery of the information must show that the information is “ ‘directly relevant’ ” to a cause of action or defense, such that disclosure is “ ‘essential to the fair resolution of the lawsuit.’ ” [Citations.]” (Look v. Penovatz (2019) 34Cal.App.5th 61, 73.)
Civil Code section 3295 prohibits pretrial discovery by plaintiff of a defendant’s financial condition absent a court order.
“Thus, the statute makes it clear that a party desiring discovery of a defendant’s financial information must bring a motion in order to obtain such information. Then, the trial court must determine whether the plaintiff has established a “ ‘substantial probability’ ” of prevailing on the claim for punitive damages. (Civ. Code § 3295, subd. (c).) “ ‘In this context, a ‘ “substantial probability” ’ of prevailing on a claim for punitive damages means that it is ‘ “very likely” ’ that the plaintiff will prevail on such a claim or there is a “ ‘ “strong likelihood” ’ ” that the plaintiff will prevail on such a claim.” ’ [Citation.]’ ” (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 283.)
Here, plaintiff have not obtained an order allowing them to obtain financial information.
The requests that seek financial information are Nos. 5, 8, and 9. No further response will be ordered.
The other interrogatories, however, do not seek financial information, do not seek privileged information, and are otherwise unobjectionable. Further responses will be ordered.
The special interrogatories served by Trent that are at issue are:
No. 11. “IDENTIFY any and all employees, officers, owners, or agents of Defendant Audrey Ovington Enterprises, Inc. who, during the time period of March 2020 until March 2024, had check writing authority on any and all of Defendant Audrey Ovington Enterprises, Inc.’s bank accounts.”
No. 12. “IDENTIFY any and all employees, officers, owners, or agents of Defendant Audrey Ovington Enterprises, Inc. who, during the time period of March 2020 until March 2024, maintained any and all of Defendant Audrey Ovington Enterprises, Inc.’s bank accounts.”
No. 13. “IDENTIFY any and all employees, officers, owners, or agents of Defendant Audrey Ovington Enterprises, Inc. who, during the time period of March 2020 until March 2024, kept the financial records of Defendant Audrey Ovington Enterprises, Inc.”
While these interrogatories seek information regarding who manages the finances of AOE, they do not actually seek the protected financial information itself. The information is not protected and AOE has not justified its objections to the interrogatories. Further responses will be ordered.
Production of Documents
Bernal propounded 24 requests for production of documents on AOE. Of those, it appears from the motion, Nos. 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 are at issue. (Motion, p. 9, ll. 3-18.)
Some of the requests improperly seek financial information such as financial statements, taxpayer identification numbers, cash flow statements, budget reports, trust information, and balance sheets. The requests that seek this protected information are Nos. 5, 10, 11, 12, 16, 17, and 18. No further responses will be ordered.
Some of the requests seek documents that appear to have no direct relevance to the issues of this case, seek private information of third parties, and plaintiffs have failed to meet their burden of making a fact-specific showing of relevance. The arguments are that the requests are probative of whether Janice is an alter ego of AOE. The court finds the arguments unpersuasive as to requests Nos. 4, 6, 8, 9, 13, 14, and 15. No further responses will be ordered.
A further response to request No. 3 will be ordered as it seeks certificates of incorporation of AOE. Certificates of incorporation are public records and there is no reason to not provide them.
Sanctions
Again, as the motion will be partly granted and partly denied, no sanctions will be issued.
Hearing on Motion to Quash
As the hearing on Janice’s motion to quash service of summons is scheduled to take place on April 28, 2025, and the discovery in dispute is vital to the analysis of that motion, counsel for the parties will be ordered to appear to discuss the rescheduling of the hearing and a briefing schedule.