Preview
Brian C. Johnson, State Bar No. 235965
THE CHANLER GROUP
2560 Ninth Street, Suite 214
Berkeley, CA 94710
Telephone: (510) 848-8880
Facsimile: (510) 848-8118
brian@chanler.com
Attorneys for Plaintiff
WHITNEY R. LEEMAN, PH.D.
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
07/15/2016
Clerk of the Court
BY:VANESSA WU
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL DIVISION
WHITNEY R. LEEMAN, PH.D.,
Plaintiff,
v.
NEWEGG INC., et al.,
Defendants.
Case No. CGC-14-542330
DECLARATION OF BRIAN JOHNSON
IN SUPPORT OF EX PARTE
APPLICATION FOR ORDER
GRANTING LEAVE TO FILE FIRST
AMENDED COMPLAINT
(Cal. Code Civ. Proc. § 473 and Cal. Rules
of Court, Rule 3.1200 et seq.)
Date: July 18, 2016
Time: 11:00 a.m.
Dept.: 302
Judge: Hon. Harold E. Kahn
DECL. ISO EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO AMEND COMPLAINTI, Brian Johnson, declare as follows:
1. Tam an attorney and a member in good standing of the California Bar. I represent
plaintiff Whitney R. Leeman, Ph.D. (“Plaintiff”), and am one of the attorneys of record in this
action. This declaration is made in support of Plaintiff’s ex parte application for an order granting
leave to file a first amended complaint. I am familiar with the matters declared herein, and if
called upon will competently testify to the same.
2 Plaintiff brought this action pursuant to Health and Safety Code section 25249.7(d)
to promote awareness of exposures to toxic chemicals, and reduce or eliminate the use of such
chemicals in consumer products. In her original July 30, 2014, 60-day notice and Complaint, she
alleges that Defendants violated Health and Safety Code section 25249.6 et seq. (“Proposition
65”) when they failed to warn consumers and other individuals in California of the health hazards
associated with exposures to di(2-ethylhexyl) phthalate ((DEHP”) a phthalate chemical Plaintiff
alleges is present in and on vinyl/PVC cords and other components of headsets sold by Defendants
in California. On October 23, 2014, more than 60 days after serving her original 60-day notice,
Plaintiff filed the instant action naming Newegg, Inc.; Magnell Associate, Inc.; and Rosewill, Inc
(“Defendants”) as defendants.
3. There is presently no trial date on calendar in this matter. On March 24, 2016, the
Court ordered the prior trial date of May 16, 2016 be vacated.
4. Plaintiff's investigation into defendants’ products and the alleged violations has
been ongoing throughout this litigation. On March 23, 2016, Plaintiff served Defendants and two
of their retail customers, Amazon.com, Inc. and Wal-Mart Stores, Inc. with a supplemental 60-day
notice of violation (“Supplemental Notice”). The Supplemental notice alleges that Wal-Mart and
Amazon also violated Proposition 65 by selling Defendants’ DEHP-containing products in
California without a health hazard warning. In addition, the supplemental notice identifies
additional products (audio headsets and backpacks) with vinyl components containing DEHP
which Plaintiff has alleged cause exposures to DEHP for which Defendants have provided no
health hazard warning in violation of Proposition 65.
L
DECL. ISO EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO AMEND COMPLAINT5 Plaintiff now seeks leave to file a first amended complaint, adding Wal-Mart
Stores, Inc. and Amazon.com, Inc. as defendants, and to include allegations pertaining to
Defendants’ additional backpack and audio headset products
6 A copy of the proposed first amended complaint is attached to this declaration as
Exhibit A.
7 If the Court denies the requested leave Plaintiff will have to bring a second action
pertaining to the additional parties and products, which will necessarily require Plaintiff and
Defendants to re-litigate very similar, if not virtually identical, claims and defenses.
8. No Party will be prejudiced by granting the requested leave, as there is presently no
trial date on the Court’s calendar.
9 Pursuant to Cal. Rules of Ct., Rule 3.1200 et seq, I provided the required statutory
notice by to counsel for Defendants. I contacted Defendants’ attorney of record, Brian M. Ledger,
by email on several occasions. His contact information is as follows:
Brian M. Ledger, Esq.
E-mail: bledger@gordonrees.com
GORDON & REES LLP
101 W. Broadway Suite 2000
San Diego, CA 92101
Telephone: (619) 696-6700
10. also provided Defendants’ counsel with a copy of the proposed amended pleading
by email. Defendants attorney, Brian Ledger, informed me by email that Defendants do not object
to the proposed amended pleading or Plaintiff's request for leave to file it.
ll Defendants previously applied ex parte to this Court. They sought an order to
continue the trial and trial-related dates. The Court denied Defendants’ application, requiring a
noticed motion, but allowed them to bring the motion on shortened time. Plaintiff did not object
to Defendants’ ex parte application or motion. Thereafter, Plaintiff applied to the Court ex parte,
also on a single occasion, to obtain an order vacating the trial of this matter set for May 16, 2016,
in light of the additional parties and claims raised in the Supplemental Notice, which give rise to
this application.
/If
2
GRANTING LEAVE TO AMEND COMPLAINT
DECL. ISOEX PARTE APPLICATION FtI declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed this +5 day of July, in Berkeley, California
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DECL. ISO EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO AMEND COMPLAINTEXHIBIT ABrian C. Johnson, State Bar No. 235965
Josh Voorhees, State Bar No. 241436
THE CHANLER GROUP
2560 Ninth Street
Parker Plaza, Suite 214
Berkeley, CA 94710-2565
Telephone: (510) 848-8880
Facsimile: (510) 848-8118
Attorneys for Plaintiff
WHITNEY R. LEEMAN, PH.D.
SUPERIOR COURT OF THE STATE OF CALIFORNIA.
COUNTY OF SAN-FRANCISCO
UNLIMITED CIVIL JURISDICTION
WHITNEY R. LEEMAN, PH_D., Case No. CGC-14-542330
Plaintiff, FIRST AMENDED COMPLAINT FOR
CIVIL PENALTIES AND INJUNCTIVE
v. RELIEF
NEWEGG INC.; MAGNELL ASSOCIATE, (Health and Safety Code § 25249.5 e/ seq.)
INC.; ROSEWILL INC,, AMAZON.COM,
INC.; WAL-MART STORES, INC.; and DOES
1-150, inclusive,
Defendants.
FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFNATURE OF THE ACTION
1. This Complaint is a representative action brought by plaintiff WHITNEY R.
LEEMAN, PH.D. in the public interest of the citizens of the State of California to enforce the
People’s right to be informed of the health hazards caused by exposures to di(2-ethylhexyl)
phthalate (“DEHP”), a toxic chemical found in certain vinyl/PVC components of audio headsets
and backpacks sold by defendants in California.
2. By this Complaint, plaintiff seeks to remedy defendants’ continuing failure to
warn California citizens and individuals not covered by California’s Occupational Safety Health
Act, Labor Code section 6300 et seq., about the risks of exposure to DEHP present in the
vinyl/PVC components of audio headsets and backpacks manufactured, distributed, sold, and
offered for sale or use to consumers and other individuals throughout the State of California
3. Detectable levels of DEHP are found in and on the vinyl/PVC components of
certain audio headsets and backpacks that defendants manufacture, import, distribute, and offer
for sale to consumers and other individuals throughout the State of California.
4, Under the Safe Drinking Water and Toxic Enforcement Act of 1986, codified at
Health and Safety Code section 25249.6 ef seg. (“Proposition 65”), “[n]o person in the course of
doing business shall knowingly and intentionally expose any individual to a chemical known to
the state to cause cancer or reproductive toxicity without first giving clear and reasonable
warning to such individual... .” Health and Safety Code § 25249.6.
5. On October 24, 2003, California listed DEHP as a chemical known to cause birth
defects or other reproductive harm under Proposition 65. DEHP became subject to the “clear
and reasonable warning” requirements of the act one year later on October 24, 2004. 27 Cal.
Code Regs. § 27001(c); Health and Safety Code §§ 25249.8 and 25249. 10(b).
6. Defendants NEWEGG INC. (“NEWEGG”), MAGNELL ASSOCIATE, INC
(“MAGNELL”), ROSEWILL INC. (“ROSEWILL”), manufacture, import, distribute, sell, and
offer for sale without health hazard warnings in California, audio headsets with vinyl/PVC
cords and other components containing DEHP, including, but not limited to, the Rosewil/ USB
FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFHeadset, Model No. RHM-6308, UPC #8 98745 03915 3, and the Rosewill Multimedia Stereo
Headset, RH-001, UPC#8 98745 00949 1.
7. Defendants NEWEGG, MAGNELL, ROSEWILL INC., and AMAZON.COM,
INC. (“AMAZON”), manufacture, import, distribute, sell, and offer for sale without health
hazard warnings in California, audio headsets with vinyl/PVC cords and other components
containing DEHP, including, but not limited to, the Rosewill Ergonomic Designed Headset,
RHM-556, UPC#8 98745 01696 3.
8. Defendants NEWEGG, MAGNELL, ROSEWILL INC., and WAL-MART
STORES, INC. (“WAL-MART”), manufacture, distribute, import, sell, and offer for sale
without health hazard warnings in California, backpacks with vinyl/PVC components
containing DEHP, including, but not limited to, the vinyl handle of the Rosewill 15.6” Notebook
Backpack‘Computer Bag, RMBP-11001, UPC #8 98745 04517 8.
9. All audio headsets with vinyl/PVC cords or other components containing DEHP,
and all backpacks with vinyl/PVC handles or other components containing DEHP sold or
offered for sale by each defendant, respectively, as described in Paragraphs 6 through 8, are
referred to hereinafter as the “PRODUCTS.”
10. Defendants’ failure to warn consumers and other individuals in California of the
health hazards associated with exposures to DEHP in conjunction with defendants’ sales of the
PRODUCTS are violations of Proposition 65 and subject defendants, and each of them, to
enjoinment of such conduct as well as the payment of civil penalties for each respective
violation. Health and Safety Code § 25249.7(a) and (b)(1).
I. For defendants’ violations of Proposition 65, plaintiff seeks preliminary and
permanent injunctive relief to compel defendants to provide purchasers and users of the
PRODUCTS with a clear and reasonable health hazards warning regarding the risks associated
with exposures to DEHP. Health and Safety Code § 25249.7(a)
12. Pursuant to Health and Safety Code section 25249.7(b), plaintiff also asks that
civil penalties be assessed against defendants for their violations of Proposition 65.
FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFPARTIES
13. Plaintiff WHITNEY R. LEEMAN, PED. is a citizen of the State of California
who is dedicated to protecting the health of California citizens by reducing or eliminating toxic
exposures from consumer products. She brings this action in the public interest pursuant to
Health and Safety Code section 25249.7(d).
14. Defendant NEWEGG is a person in the course of doing business within the
meaning of Health and Safety Code sections 25249.6 and 25249. 11
15. NEWEGG manufactures, imports, distributes, sells, and offers the PRODUCTS for
sale or use in California, or implies by its conduct that it manufactures, imports, distributes, sells,
and/or offers PRODUCTS for sale or use in California.
16. Defendant MAGNELL is a person in the course of doing business within the
meaning of Health and Safety Code sections 25249.6 and 25249.11.
17. MAGNELL manufactures, imports, distributes, sells, and offers the PRODUCTS
for sale or use in California, or implies by its conduct that it manufactures, imports, distributes,
sells, and/or offers PRODUCTS for sale or use in California.
18. Defendant ROSEWILL is a person in the course of doing business within the
meaning of Health and Safety Code sections 25249.6 and 25249.11.
19 ROSEWILL manufactures, imports, distributes, sells, and offers the PRODUCTS
for sale or use in California, or implies by its conduct that it manufactures, imports, distributes,
sells, and/or offers PRODUCTS for sale or use in California.
20. Defendant AMAZON is a person in the course of doing business within the
meaning of Health and Safety Code sections 25249.6 and 25249.11.
21. AMAZON purchases for sale, imports, distributes, sells, and offers certain of the
PRODUCTS for sale or use in California, or implies by its conduct that it purchases for sale,
imports, distributes, sells, and offers certain PRODUCTS for sale or use in California.
22. Defendant WAL-MART is a person in the course of doing business within the
meaning of Health and Safety Code sections 25249.6 and 25249.11.
FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF23. WAL-MART purchases for sale, imports, distributes, sells, and offers certain
PRODUCTS for sale or use in California, or implies by its conduct that it purchases for sale,
imports, distributes, sells, and offers certain PRODUCTS for sale or use in California.
24. Defendants DOES 1-50 (“MANUFACTURER DEFENDANTS”) are each a
person in the course of doing business within the meaning of Health and Safety Code sections
25249.6 and 25249.11.
25. MANUFACTURER DEFENDANTS research, test, design, assemble, fabricate,
and manufacture, or imply by their conduct that they research, test, design, assemble, fabricate,
and manufacture one or more of the PRODUCTS offered for sale or use in the State of
California.
26. Defendants DOES 51-100 (“DISTRIBUTOR DEFENDANTS”) are each a person
in the course of doing business within the meaning of Health and Safety Code sections 25249.6
and 25249.11
27. DISTRIBUTOR DEFENDANTS distribute, exchange, transfer, process, and
transport one or more of the PRODUCTS to individuals, businesses, or retailers for sale or use
in the State of California.
28. Defendants DOES 101-150 (“RETAILER DEFENDANTS”) are each a person in
the course of doing business within the meaning of Health and Safety Code sections 25249.6
and 25249. 11.
29. RETAILER DEFENDANTS offer the PRODUCTS for sale to individuals in the
State of California.
30. At this time, the true names of defendants DOES 1 through 150, inclusive, are
unknown to plaintiff, who, therefore, sues said defendants by their fictitious names pursuant to
Code of Civil Procedure section 474, Plaintiff is informed and believes, and on that basis
alleges, that each of the fictitiously named defendants is responsible for the acts and occurrences
alleged herein. When ascertained, their true names shall be reflected in an amended complaint
FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF31. NEWEGG, MAGNELL, ROSEWILL, AMAZON, WAL-MART,
MANUFACTURER DEFENDANTS, DISTRIBUTOR DEFENDANTS, and RETAILER
DEFENDANTS are collectively referred to hereinafter as “DEFENDANTS.”
VENUE AND JURISDICTION
32. Venue is proper in the Superior Court for the County of San Francisco, pursuant
to Code of Civil Procedure sections 393, 395, and 395.5, because this Court is a court of
competent jurisdiction, because plaintiff seeks civil penalties against DEFENDANTS, because
one or more instances of wrongful conduct occurred, and continue to occur, in San Francisco,
and/or because DEFENDANTS conduct business in this county with respect to the
PRODUCTS.
33. The California Superior Court has jurisdiction over this action pursuant to
California Constitution Article VI, section 10, which grants the Superior Court “original
jurisdiction in all causes except those given by statute to other trial courts.” The statute under
which this action is brought does not specify any other basis of subject matter jurisdiction.
34. The California Superior Court has jurisdiction over DEFENDANTS based on
plaintiffs information and good faith belief that each defendant is a person, firm, corporation or
association that is a citizen of the State of California, has sufficient minimum contacts in the
State of California, or otherwise purposefillly avails itself of the California market.
DEFENDANTS’ purposeful availment renders the exercise of personal jurisdiction by
California courts consistent with traditional notions of fair play and substantial justice.
FIRST CAUSE OF ACTION
(Violation of Proposition 65 - Against All Defendants)
35. Plaintiff realleges and incorporates by reference, as if fully set forth herein,
Paragraphs | through 34, inclusive.
36. In enacting Proposition 65, in the preamble to the Safe Drinking Water and Toxic
Enforcement Act of 1986, the People of California expressly declared their right “[t]o be
FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFinformed about exposures to chemicals that cause cancer, birth defects, or other reproductive
harm.
37. Proposition 65 states, “[n]o person in the course of doing business shall
knowingly and intentionally expose any individual to a chemical known to the state to cause
cancer or reproductive toxicity without first giving clear and reasonable warning to such
individual...” Health and Safety Code § 25249.6.
38. On July 30, 2014, plaintiff served a sixty-day notice of violation and
accompanying certificate of merit on NEWEGG, MAGNELL, ROSEWILL, the California
Attorney General, and all other requisite public enforcement agencies alleging that, as a result
of DEFENDANTS’ sales of audio headsets with vinyl components containing DEHP such as
the Rosewill USB Headset, Model No. RHM-6308, UPC #8 98745 03915 3, DEFENDANTS
exposed purchasers and users of these products to DEHP during reasonably foreseeable use, and
DEFENDANTS did so without providing the individual purchasers and users with a “clear and
reasonable warning” regarding the harms associated with such exposures, as required by
Proposition 65
39. On March 23, 2016, plaintiff served a supplemental sixty-day notice of violation
and accompanying certificate of merit on NEWEGG, MAGNELL, ROSEWILL, AMAZON,
WAL-MART, the California Attorney General, and all other requisite public enforcement
agencies alleging that, as a result of DEFENDANTS’ respective sales of the PRODUCTS,
DEFENDANTS exposed purchasers and users in California to DEHP as a result of such
purchasers and users reasonably foreseeable use of the PRODUCTS, and DEFENDANTS did
so without those individuals with a “clear and reasonable warning” regarding the harms
associated with such exposures, as required by Proposition 65.
40. DEFENDANTS manufacture, import, purchase for sale, distribute, sell, and offer
certain PRODUCTS for sale or use in violation of Health and Safety Code section 25249.6, and
DEFENDANTS’ violations have continued beyond their receipt of plaintiff's sixty-day notices
of violation. As such, DEFENDANTS’ violations are ongoing and continuous in nature, and,
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FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFow nN
unless enjoined, will continue in the future.
41. After receiving plaintiff's sixty-day notice of violation, no public enforcement
agency has commenced and is diligently prosecuting an action against DEFENDANTS to
enforce the alleged violations that are the subject of either of plaintiff’ s 60-day notices of
violation.
42. The PRODUCTS that DEFENDANTS manufacture, import, purchase for sale,
distribute, sell, and offer for sale or use in California cause expose consumers and other
individuals to DEHP during their reasonably foreseeable uses of the PRODUCTS. Such
exposures caused by DEFENDANTS and endured by consumers and other individuals in
California are not exempt from the “clear and reasonable” warning requirements of Proposition
65, yet DEFENDANTS provide no warning.
43 DEFENDANTS know or should know that the PRODUCTS they manufacture,
import, purchase for sale, distribute, sell, and offer for sale in California contain DEHP.
44. DEHP is present in or on the PRODUCTS in such a way as to expose individuals
to DEHP through dermal contact and ingestion during reasonably foreseeable use.
45. The normal and reasonably foreseeable uses of the PRODUCTS has caused, and
continues to cause, consumer exposures to DEHP, as such exposures are defined by title 27 of
the California Code of Regulations, section 25602(b).
46. DEFENDANTS know that the normal and reasonably foreseeable use of the
PRODUCTS exposes individuals to DEHP through dermal contact, and ingestion.
47, DEFENDANTS intentionally expose consumers and other individuals to DEHP
during such individuals’ reasonably foreseeable uses of the PRODUCTS, and DEFENDANTS
do so by their deliberate, non-accidental participation in the manufacture, importation,
distribution, sale, and offering of the PRODUCTS for sale or use by consumers and other
individuals in California.
FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF48. DEFENDANTS failed to provide a “clear and reasonable warning” to those
consumers and other individuals in California exposed to DEHP through dermal contact, and
ingestion during their reasonably foreseeable uses of the PRODUCTS
49. Contrary to the express policy and statutory prohibition of Proposition 65 enacted
directly by California voters, those individuals exposed to DEHP through dermal contact, and
ingestion as a result of their use of the PRODUCTS that DEFENDANTS sell without a “clear
and reasonable” health hazard warning have suffered, and will continue to suffer, irreparable
harm for which no plain, speedy, or adequate remedy is available.
50. Pursuant to Health and Safety Code section 25249.7(b), as a consequence of the
above-described acts, DEFENDANTS, and each of them, are liable for a maximum civil penalty
of $2,500 per day for each violation.
51. Asa consequence of the above-described acts, Health and Safety Code
section 25249.7(a) also specifically authorizes the Court to grant injunctive relief against
DEFENDANTS.
PRAYER FOR RELIEF
Wherefore, plaintiff prays for judgment against DEFENDANTS as follows:
1 That the Court, pursuant to Health and Safety Code section 25249.7(b), assess
civil penalties against DEFENDANTS, and each of them, in the amount of $2,500 per day for
each violation;
2. That the Court, pursuant to Health and Safety Code section 25249.7(a),
preliminarily and permanently enjoin DEFENDANTS from manufacturing, distributing, or
offering any of the PRODUCTS for sale in California without first providing a “clear and
reasonable warning” in accordance with title 27 of the California Code of Regulations, section
25601 et seq., regarding the harms associated with exposures to DEHP,
3. That the Court, pursuant to Health and Safety Code section 25249.7(a), issue
preliminary and permanent injunctions mandating that DEFENDANTS recall all PRODUCTS
FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFcurrently in the chain of commerce in California without a “clear and reasonable warning” as
defined by California Code of Regulations title 27, section 25601 et seq.;
4. That the Court grant plaintiff her reasonable attorneys’ fees and costs of suit; and
5 That the Court grant such other and further relief as may be just and proper.
Dated: July, 2016 Respectfully Submitted,
THE CHANLER GROUP
By:
Brian C. Johnson
Attorneys for Plaintiff
WHITNEY R. LEEMAN, PH.D.
FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF
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Brian C. Johnson, State Bar No. 235965 THE CHANLER GROUP 2560 Ninth Street, Suite 214 Berkeley, CA 94710 Telephone: (510) 848-8880 Facsimile: (510) 848-8118 brian@chanler.com Attorneys for Plaintiff WHITNEY R. LEEMAN, PH.D. ELECTRONICALLY FILED Superior Court of California, County of San Francisco 07/15/2016 Clerk of the Court BY:VANESSA WU Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO UNLIMITED CIVIL DIVISION WHITNEY R. LEEMAN, PH.D., Plaintiff, v. NEWEGG INC., et al., Defendants. Case No. CGC-14-542330 DECLARATION OF BRIAN JOHNSON IN SUPPORT OF EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO FILE FIRST AMENDED COMPLAINT (Cal. Code Civ. Proc. § 473 and Cal. Rules of Court, Rule 3.1200 et seq.) Date: July 18, 2016 Time: 11:00 a.m. Dept.: 302 Judge: Hon. Harold E. Kahn DECL. ISO EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO AMEND COMPLAINTI, Brian Johnson, declare as follows: 1. Tam an attorney and a member in good standing of the California Bar. I represent plaintiff Whitney R. Leeman, Ph.D. (“Plaintiff”), and am one of the attorneys of record in this action. This declaration is made in support of Plaintiff’s ex parte application for an order granting leave to file a first amended complaint. I am familiar with the matters declared herein, and if called upon will competently testify to the same. 2 Plaintiff brought this action pursuant to Health and Safety Code section 25249.7(d) to promote awareness of exposures to toxic chemicals, and reduce or eliminate the use of such chemicals in consumer products. In her original July 30, 2014, 60-day notice and Complaint, she alleges that Defendants violated Health and Safety Code section 25249.6 et seq. (“Proposition 65”) when they failed to warn consumers and other individuals in California of the health hazards associated with exposures to di(2-ethylhexyl) phthalate ((DEHP”) a phthalate chemical Plaintiff alleges is present in and on vinyl/PVC cords and other components of headsets sold by Defendants in California. On October 23, 2014, more than 60 days after serving her original 60-day notice, Plaintiff filed the instant action naming Newegg, Inc.; Magnell Associate, Inc.; and Rosewill, Inc (“Defendants”) as defendants. 3. There is presently no trial date on calendar in this matter. On March 24, 2016, the Court ordered the prior trial date of May 16, 2016 be vacated. 4. Plaintiff's investigation into defendants’ products and the alleged violations has been ongoing throughout this litigation. On March 23, 2016, Plaintiff served Defendants and two of their retail customers, Amazon.com, Inc. and Wal-Mart Stores, Inc. with a supplemental 60-day notice of violation (“Supplemental Notice”). The Supplemental notice alleges that Wal-Mart and Amazon also violated Proposition 65 by selling Defendants’ DEHP-containing products in California without a health hazard warning. In addition, the supplemental notice identifies additional products (audio headsets and backpacks) with vinyl components containing DEHP which Plaintiff has alleged cause exposures to DEHP for which Defendants have provided no health hazard warning in violation of Proposition 65. L DECL. ISO EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO AMEND COMPLAINT5 Plaintiff now seeks leave to file a first amended complaint, adding Wal-Mart Stores, Inc. and Amazon.com, Inc. as defendants, and to include allegations pertaining to Defendants’ additional backpack and audio headset products 6 A copy of the proposed first amended complaint is attached to this declaration as Exhibit A. 7 If the Court denies the requested leave Plaintiff will have to bring a second action pertaining to the additional parties and products, which will necessarily require Plaintiff and Defendants to re-litigate very similar, if not virtually identical, claims and defenses. 8. No Party will be prejudiced by granting the requested leave, as there is presently no trial date on the Court’s calendar. 9 Pursuant to Cal. Rules of Ct., Rule 3.1200 et seq, I provided the required statutory notice by to counsel for Defendants. I contacted Defendants’ attorney of record, Brian M. Ledger, by email on several occasions. His contact information is as follows: Brian M. Ledger, Esq. E-mail: bledger@gordonrees.com GORDON & REES LLP 101 W. Broadway Suite 2000 San Diego, CA 92101 Telephone: (619) 696-6700 10. also provided Defendants’ counsel with a copy of the proposed amended pleading by email. Defendants attorney, Brian Ledger, informed me by email that Defendants do not object to the proposed amended pleading or Plaintiff's request for leave to file it. ll Defendants previously applied ex parte to this Court. They sought an order to continue the trial and trial-related dates. The Court denied Defendants’ application, requiring a noticed motion, but allowed them to bring the motion on shortened time. Plaintiff did not object to Defendants’ ex parte application or motion. Thereafter, Plaintiff applied to the Court ex parte, also on a single occasion, to obtain an order vacating the trial of this matter set for May 16, 2016, in light of the additional parties and claims raised in the Supplemental Notice, which give rise to this application. /If 2 GRANTING LEAVE TO AMEND COMPLAINT DECL. ISOEX PARTE APPLICATION FtI declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this +5 day of July, in Berkeley, California Cx A (Cras ek son 3 DECL. ISO EX PARTE APPLICATION FOR ORDER GRANTING LEAVE TO AMEND COMPLAINTEXHIBIT ABrian C. Johnson, State Bar No. 235965 Josh Voorhees, State Bar No. 241436 THE CHANLER GROUP 2560 Ninth Street Parker Plaza, Suite 214 Berkeley, CA 94710-2565 Telephone: (510) 848-8880 Facsimile: (510) 848-8118 Attorneys for Plaintiff WHITNEY R. LEEMAN, PH.D. SUPERIOR COURT OF THE STATE OF CALIFORNIA. COUNTY OF SAN-FRANCISCO UNLIMITED CIVIL JURISDICTION WHITNEY R. LEEMAN, PH_D., Case No. CGC-14-542330 Plaintiff, FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE v. RELIEF NEWEGG INC.; MAGNELL ASSOCIATE, (Health and Safety Code § 25249.5 e/ seq.) INC.; ROSEWILL INC,, AMAZON.COM, INC.; WAL-MART STORES, INC.; and DOES 1-150, inclusive, Defendants. FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFNATURE OF THE ACTION 1. This Complaint is a representative action brought by plaintiff WHITNEY R. LEEMAN, PH.D. in the public interest of the citizens of the State of California to enforce the People’s right to be informed of the health hazards caused by exposures to di(2-ethylhexyl) phthalate (“DEHP”), a toxic chemical found in certain vinyl/PVC components of audio headsets and backpacks sold by defendants in California. 2. By this Complaint, plaintiff seeks to remedy defendants’ continuing failure to warn California citizens and individuals not covered by California’s Occupational Safety Health Act, Labor Code section 6300 et seq., about the risks of exposure to DEHP present in the vinyl/PVC components of audio headsets and backpacks manufactured, distributed, sold, and offered for sale or use to consumers and other individuals throughout the State of California 3. Detectable levels of DEHP are found in and on the vinyl/PVC components of certain audio headsets and backpacks that defendants manufacture, import, distribute, and offer for sale to consumers and other individuals throughout the State of California. 4, Under the Safe Drinking Water and Toxic Enforcement Act of 1986, codified at Health and Safety Code section 25249.6 ef seg. (“Proposition 65”), “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual... .” Health and Safety Code § 25249.6. 5. On October 24, 2003, California listed DEHP as a chemical known to cause birth defects or other reproductive harm under Proposition 65. DEHP became subject to the “clear and reasonable warning” requirements of the act one year later on October 24, 2004. 27 Cal. Code Regs. § 27001(c); Health and Safety Code §§ 25249.8 and 25249. 10(b). 6. Defendants NEWEGG INC. (“NEWEGG”), MAGNELL ASSOCIATE, INC (“MAGNELL”), ROSEWILL INC. (“ROSEWILL”), manufacture, import, distribute, sell, and offer for sale without health hazard warnings in California, audio headsets with vinyl/PVC cords and other components containing DEHP, including, but not limited to, the Rosewil/ USB FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFHeadset, Model No. RHM-6308, UPC #8 98745 03915 3, and the Rosewill Multimedia Stereo Headset, RH-001, UPC#8 98745 00949 1. 7. Defendants NEWEGG, MAGNELL, ROSEWILL INC., and AMAZON.COM, INC. (“AMAZON”), manufacture, import, distribute, sell, and offer for sale without health hazard warnings in California, audio headsets with vinyl/PVC cords and other components containing DEHP, including, but not limited to, the Rosewill Ergonomic Designed Headset, RHM-556, UPC#8 98745 01696 3. 8. Defendants NEWEGG, MAGNELL, ROSEWILL INC., and WAL-MART STORES, INC. (“WAL-MART”), manufacture, distribute, import, sell, and offer for sale without health hazard warnings in California, backpacks with vinyl/PVC components containing DEHP, including, but not limited to, the vinyl handle of the Rosewill 15.6” Notebook Backpack‘Computer Bag, RMBP-11001, UPC #8 98745 04517 8. 9. All audio headsets with vinyl/PVC cords or other components containing DEHP, and all backpacks with vinyl/PVC handles or other components containing DEHP sold or offered for sale by each defendant, respectively, as described in Paragraphs 6 through 8, are referred to hereinafter as the “PRODUCTS.” 10. Defendants’ failure to warn consumers and other individuals in California of the health hazards associated with exposures to DEHP in conjunction with defendants’ sales of the PRODUCTS are violations of Proposition 65 and subject defendants, and each of them, to enjoinment of such conduct as well as the payment of civil penalties for each respective violation. Health and Safety Code § 25249.7(a) and (b)(1). I. For defendants’ violations of Proposition 65, plaintiff seeks preliminary and permanent injunctive relief to compel defendants to provide purchasers and users of the PRODUCTS with a clear and reasonable health hazards warning regarding the risks associated with exposures to DEHP. Health and Safety Code § 25249.7(a) 12. Pursuant to Health and Safety Code section 25249.7(b), plaintiff also asks that civil penalties be assessed against defendants for their violations of Proposition 65. FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFPARTIES 13. Plaintiff WHITNEY R. LEEMAN, PED. is a citizen of the State of California who is dedicated to protecting the health of California citizens by reducing or eliminating toxic exposures from consumer products. She brings this action in the public interest pursuant to Health and Safety Code section 25249.7(d). 14. Defendant NEWEGG is a person in the course of doing business within the meaning of Health and Safety Code sections 25249.6 and 25249. 11 15. NEWEGG manufactures, imports, distributes, sells, and offers the PRODUCTS for sale or use in California, or implies by its conduct that it manufactures, imports, distributes, sells, and/or offers PRODUCTS for sale or use in California. 16. Defendant MAGNELL is a person in the course of doing business within the meaning of Health and Safety Code sections 25249.6 and 25249.11. 17. MAGNELL manufactures, imports, distributes, sells, and offers the PRODUCTS for sale or use in California, or implies by its conduct that it manufactures, imports, distributes, sells, and/or offers PRODUCTS for sale or use in California. 18. Defendant ROSEWILL is a person in the course of doing business within the meaning of Health and Safety Code sections 25249.6 and 25249.11. 19 ROSEWILL manufactures, imports, distributes, sells, and offers the PRODUCTS for sale or use in California, or implies by its conduct that it manufactures, imports, distributes, sells, and/or offers PRODUCTS for sale or use in California. 20. Defendant AMAZON is a person in the course of doing business within the meaning of Health and Safety Code sections 25249.6 and 25249.11. 21. AMAZON purchases for sale, imports, distributes, sells, and offers certain of the PRODUCTS for sale or use in California, or implies by its conduct that it purchases for sale, imports, distributes, sells, and offers certain PRODUCTS for sale or use in California. 22. Defendant WAL-MART is a person in the course of doing business within the meaning of Health and Safety Code sections 25249.6 and 25249.11. FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF23. WAL-MART purchases for sale, imports, distributes, sells, and offers certain PRODUCTS for sale or use in California, or implies by its conduct that it purchases for sale, imports, distributes, sells, and offers certain PRODUCTS for sale or use in California. 24. Defendants DOES 1-50 (“MANUFACTURER DEFENDANTS”) are each a person in the course of doing business within the meaning of Health and Safety Code sections 25249.6 and 25249.11. 25. MANUFACTURER DEFENDANTS research, test, design, assemble, fabricate, and manufacture, or imply by their conduct that they research, test, design, assemble, fabricate, and manufacture one or more of the PRODUCTS offered for sale or use in the State of California. 26. Defendants DOES 51-100 (“DISTRIBUTOR DEFENDANTS”) are each a person in the course of doing business within the meaning of Health and Safety Code sections 25249.6 and 25249.11 27. DISTRIBUTOR DEFENDANTS distribute, exchange, transfer, process, and transport one or more of the PRODUCTS to individuals, businesses, or retailers for sale or use in the State of California. 28. Defendants DOES 101-150 (“RETAILER DEFENDANTS”) are each a person in the course of doing business within the meaning of Health and Safety Code sections 25249.6 and 25249. 11. 29. RETAILER DEFENDANTS offer the PRODUCTS for sale to individuals in the State of California. 30. At this time, the true names of defendants DOES 1 through 150, inclusive, are unknown to plaintiff, who, therefore, sues said defendants by their fictitious names pursuant to Code of Civil Procedure section 474, Plaintiff is informed and believes, and on that basis alleges, that each of the fictitiously named defendants is responsible for the acts and occurrences alleged herein. When ascertained, their true names shall be reflected in an amended complaint FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF31. NEWEGG, MAGNELL, ROSEWILL, AMAZON, WAL-MART, MANUFACTURER DEFENDANTS, DISTRIBUTOR DEFENDANTS, and RETAILER DEFENDANTS are collectively referred to hereinafter as “DEFENDANTS.” VENUE AND JURISDICTION 32. Venue is proper in the Superior Court for the County of San Francisco, pursuant to Code of Civil Procedure sections 393, 395, and 395.5, because this Court is a court of competent jurisdiction, because plaintiff seeks civil penalties against DEFENDANTS, because one or more instances of wrongful conduct occurred, and continue to occur, in San Francisco, and/or because DEFENDANTS conduct business in this county with respect to the PRODUCTS. 33. The California Superior Court has jurisdiction over this action pursuant to California Constitution Article VI, section 10, which grants the Superior Court “original jurisdiction in all causes except those given by statute to other trial courts.” The statute under which this action is brought does not specify any other basis of subject matter jurisdiction. 34. The California Superior Court has jurisdiction over DEFENDANTS based on plaintiffs information and good faith belief that each defendant is a person, firm, corporation or association that is a citizen of the State of California, has sufficient minimum contacts in the State of California, or otherwise purposefillly avails itself of the California market. DEFENDANTS’ purposeful availment renders the exercise of personal jurisdiction by California courts consistent with traditional notions of fair play and substantial justice. FIRST CAUSE OF ACTION (Violation of Proposition 65 - Against All Defendants) 35. Plaintiff realleges and incorporates by reference, as if fully set forth herein, Paragraphs | through 34, inclusive. 36. In enacting Proposition 65, in the preamble to the Safe Drinking Water and Toxic Enforcement Act of 1986, the People of California expressly declared their right “[t]o be FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFinformed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm. 37. Proposition 65 states, “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual...” Health and Safety Code § 25249.6. 38. On July 30, 2014, plaintiff served a sixty-day notice of violation and accompanying certificate of merit on NEWEGG, MAGNELL, ROSEWILL, the California Attorney General, and all other requisite public enforcement agencies alleging that, as a result of DEFENDANTS’ sales of audio headsets with vinyl components containing DEHP such as the Rosewill USB Headset, Model No. RHM-6308, UPC #8 98745 03915 3, DEFENDANTS exposed purchasers and users of these products to DEHP during reasonably foreseeable use, and DEFENDANTS did so without providing the individual purchasers and users with a “clear and reasonable warning” regarding the harms associated with such exposures, as required by Proposition 65 39. On March 23, 2016, plaintiff served a supplemental sixty-day notice of violation and accompanying certificate of merit on NEWEGG, MAGNELL, ROSEWILL, AMAZON, WAL-MART, the California Attorney General, and all other requisite public enforcement agencies alleging that, as a result of DEFENDANTS’ respective sales of the PRODUCTS, DEFENDANTS exposed purchasers and users in California to DEHP as a result of such purchasers and users reasonably foreseeable use of the PRODUCTS, and DEFENDANTS did so without those individuals with a “clear and reasonable warning” regarding the harms associated with such exposures, as required by Proposition 65. 40. DEFENDANTS manufacture, import, purchase for sale, distribute, sell, and offer certain PRODUCTS for sale or use in violation of Health and Safety Code section 25249.6, and DEFENDANTS’ violations have continued beyond their receipt of plaintiff's sixty-day notices of violation. As such, DEFENDANTS’ violations are ongoing and continuous in nature, and, 6 FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFow nN unless enjoined, will continue in the future. 41. After receiving plaintiff's sixty-day notice of violation, no public enforcement agency has commenced and is diligently prosecuting an action against DEFENDANTS to enforce the alleged violations that are the subject of either of plaintiff’ s 60-day notices of violation. 42. The PRODUCTS that DEFENDANTS manufacture, import, purchase for sale, distribute, sell, and offer for sale or use in California cause expose consumers and other individuals to DEHP during their reasonably foreseeable uses of the PRODUCTS. Such exposures caused by DEFENDANTS and endured by consumers and other individuals in California are not exempt from the “clear and reasonable” warning requirements of Proposition 65, yet DEFENDANTS provide no warning. 43 DEFENDANTS know or should know that the PRODUCTS they manufacture, import, purchase for sale, distribute, sell, and offer for sale in California contain DEHP. 44. DEHP is present in or on the PRODUCTS in such a way as to expose individuals to DEHP through dermal contact and ingestion during reasonably foreseeable use. 45. The normal and reasonably foreseeable uses of the PRODUCTS has caused, and continues to cause, consumer exposures to DEHP, as such exposures are defined by title 27 of the California Code of Regulations, section 25602(b). 46. DEFENDANTS know that the normal and reasonably foreseeable use of the PRODUCTS exposes individuals to DEHP through dermal contact, and ingestion. 47, DEFENDANTS intentionally expose consumers and other individuals to DEHP during such individuals’ reasonably foreseeable uses of the PRODUCTS, and DEFENDANTS do so by their deliberate, non-accidental participation in the manufacture, importation, distribution, sale, and offering of the PRODUCTS for sale or use by consumers and other individuals in California. FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF48. DEFENDANTS failed to provide a “clear and reasonable warning” to those consumers and other individuals in California exposed to DEHP through dermal contact, and ingestion during their reasonably foreseeable uses of the PRODUCTS 49. Contrary to the express policy and statutory prohibition of Proposition 65 enacted directly by California voters, those individuals exposed to DEHP through dermal contact, and ingestion as a result of their use of the PRODUCTS that DEFENDANTS sell without a “clear and reasonable” health hazard warning have suffered, and will continue to suffer, irreparable harm for which no plain, speedy, or adequate remedy is available. 50. Pursuant to Health and Safety Code section 25249.7(b), as a consequence of the above-described acts, DEFENDANTS, and each of them, are liable for a maximum civil penalty of $2,500 per day for each violation. 51. Asa consequence of the above-described acts, Health and Safety Code section 25249.7(a) also specifically authorizes the Court to grant injunctive relief against DEFENDANTS. PRAYER FOR RELIEF Wherefore, plaintiff prays for judgment against DEFENDANTS as follows: 1 That the Court, pursuant to Health and Safety Code section 25249.7(b), assess civil penalties against DEFENDANTS, and each of them, in the amount of $2,500 per day for each violation; 2. That the Court, pursuant to Health and Safety Code section 25249.7(a), preliminarily and permanently enjoin DEFENDANTS from manufacturing, distributing, or offering any of the PRODUCTS for sale in California without first providing a “clear and reasonable warning” in accordance with title 27 of the California Code of Regulations, section 25601 et seq., regarding the harms associated with exposures to DEHP, 3. That the Court, pursuant to Health and Safety Code section 25249.7(a), issue preliminary and permanent injunctions mandating that DEFENDANTS recall all PRODUCTS FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFcurrently in the chain of commerce in California without a “clear and reasonable warning” as defined by California Code of Regulations title 27, section 25601 et seq.; 4. That the Court grant plaintiff her reasonable attorneys’ fees and costs of suit; and 5 That the Court grant such other and further relief as may be just and proper. Dated: July, 2016 Respectfully Submitted, THE CHANLER GROUP By: Brian C. Johnson Attorneys for Plaintiff WHITNEY R. LEEMAN, PH.D. FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF