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BRIAN C. JOHNSON, SBN 235695
Email: brian@chanler.com
THE CHANLER GROUP
2560 Ninth Street, Suite 214
Berkeley, CA 94710
Telephone: (510) 848-8880
Facsimile: (510) 848-8118
Attorneys for Plaintiff
WHITNEY R. LEEMAN, PH.D.
BRIAN M. LEDGER, SBN 156942
Email: bledger@gordonrees.com
GORDON & REES LLP
101 W. Broadway Suite 2000
San Diego, CA 92101
Telephone: (619) 696-6700
Facsimile: (619) 696-7124
Attorneys for Defendants
NEWEGG, INC., MAGNELL ASSOCIATE, INC.
and ROSEWILL, INC.
ELECTRONICALLY
FILED
Superior Court of Caitfornia,
County of San Francisco
03/24/2016
Clerk of the Court
BY:BOWMAN LIU
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
WHITNEY R. LEEMAN, PH.D.,
Plaintiff,
v.
NEWEGG INC., e7 al.,
Defendants.
Case No. CGC-14-542330
JOINT EX PARTE APPLICATION,
FOR ORDER VACATING TRIAL
DATE OR ALTERNATIVELY
CONTINUING TRIAL FOR 180 DAYS
Date: March 24, 2016
Time: 11:00 a.m.
Dept.: 206
Judge: Hon. John K. Stewart
(California Rules of Court, Rules 3.1200 et
seq. and 3.1332(b))
JOINT EX PARTE APPLICATION FOR ORDER VACATING OR CONTINUING TRIAL DATEwe
un
I INTRODUCTION
Plaintiff WHITNEY R. LEEMAN, PH.D. (“Leeman”) and defendants NEWEGG, INC.,
MAGNELL ASSOCIATE, INC. and ROSEWILL, INC. (collectively “Defendants” and with
Leeman the “Parties”) submit the following ex parte application for an order vacating the trial date
and all trial-related deadlines in the captioned matter or, in the alternative, continuing the trial date
and all trial-related deadlines for 180 days. The trial is currently set for May 16, 2016 and this
date, in the interest of party and judicial economy and resources should be vacated. Good cause
exists to support this request, as Leeman intends to file an amended pleading adding two
additional defendants, and three additional products to the claims at issue in this litigation. This is
the first request to vacate the trial date. Defendants previously moved the Court for an order
continuing the January 16, 2016, initial trial date which the Court granted. The Parties are also
engaged in settlement discussions which, if successful, may obviate the need for a trial.
I. BACKGROUND
Plaintiff sued Defendants under Proposition 65, alleging a failure to warn consumers of the
health hazards associated with exposures to di(2-ethylhexyl) phthalate (“DEHP”), a toxic phthalate
chemical that Leeman alleges is present in the vinyl/PVC cords and other components of headsets
sold by Defendants in California. (See Compl.; Decl. of Brian Johnson (“Johnson Decl.”) 4 2.)
The trial in this case is now set for May 16, 2016. (Johnson Decl. 3.) The undersigned
counsel will represent the Parties at trial. (/d.) On March 23, 2016, Leeman served defendants
with a Supplemental 60-Day Notice of Violation of Proposition 65 (“Supplemental Notice.”) A
true and correct copy of the Supplemental Notice is attached as Exhibit A to the Johnson Decl.
(Johnson Decl, 5.) The Supplemental Notice adds three products not alleged in the complaint
(two additional headsets, and a backpack with vinyl components containing DEHP, as well as two
alleged violators (retail customers of Defendants) who plaintiff intends to name as defendants in
this action after perfecting standing to do so.
Plaintiff will not have standing to file an amended pleading adding the parties and claims
that are the subject of the Supplemental Notice, however, until June 1, 2016. Once the applicable
60-day period has run, assuming no public enforcer elects to pursue her alleged claims, Leemanwe
un
will file an amended pleading so that any settlement or judgment resulting from this action
includes all potential parties and claims. See, generally, Health & Safety Code § 25249.7(d).
In addition to Leeman’s need to perfect standing before bringing her claims to enforce the
alleged violations and pursue the parties identified in the Supplemental Notice, the Parties also
need additional time in which to complete fact discovery (as to the added claims and defendants)
and consider the potential for settlement. (Johnson Decl. { 7.) In order to adequately prepare their
respective cases for trial, and prepare their consultants for expert discovery, the parties need to
propound and respond to written discovery pertaining to Leeman’s newly-alleged claims and
Defendants’ products that are the subject of those claims, as well as take party and expert
depositions. Those entities Leeman intends to add as defendants will also need to engage in fact
discovery and depositions in order to prepare their cases for any trial that may follow.
The Parties believe that the current trial date should be vacated. They are amenable,
however, to a continuance of at least 180 days, and while this certain date may be workable, it will
not be without it’s challenges, as Leeman cannot add further defendants for more than 60 days,
and the case will not be at issue until at least another 40 days beyond that time. (Johnson Decl. §
13.) Therefore, the Parties request that the Court vacate the trial date and all trial-related deadlines
(fact discovery cutoff, motions cutoff, expert exchange deadline, and expert discovery cutoff) or
alternatively continue the trial for 180 days along with all trial-related deadlines. The Parties are
submitting a stipulation and proposed order to this effect with this ex parte application. This
motion is being filed as soon as practicable. Leeman’s counsel only completed their analysis of
the merit of the newly-added claims against Defendants within the last two weeks. (Johnson Decl.
6.) On March 23, 2016, Leeman served the Supplemental Notice that will allow her standing to
amend her pleading to add these parties and claims. (Id.) The Court granted Defendants a
continuance of 120 days late last year. (Johnson Decl. § 15.) No parties will be prejudiced by a
continuance. (Johnson Decl. § 13.) No party will be prejudiced by vacating the trial date, in fact
doing so will save significant party and judicial resources and avoid a second action, litigation,
and trial on Leeman’s most recent claims. (Id.)Ill. GOOD CAUSE EXISTS TO GRANT THIS REQUEST AND VACATE THE TRIAL
DATE AND ALL AND TRIAL-RELATED DATES, BASED ON PLAITIFF’S
DITIONAL CLAIMS AGAINST DEFENDANTS AND OTHER
THEIR CHAIN OF DISTRIBUTION
The California Rules of Court provide, in relevant part, the following grounds supporting
good cause to grant a request to continue a trial date:
OR Re
(4) The addition of a new party if:
(A) The new party has not had a reasonable opportunity to conduct discovery and
prepare for trial; or
(B) The other parties have not had a reasonable opportunity to conduct discovery
and prepare for trial in regard to the new party's involvement in the case;
(5) A party's excused inability to obtain essential testimony, documents, or other material
evidence despite diligent efforts; or
(6) A significant, unanticipated change in the status of the case as a result of which the
case is not ready for trial.
Cal. Rules of Ct., Rule 3.1332(c).
Additional factors that may indicate good cause for a trial continuance “[t]he prejudice that
parties or witnesses will suffer as a result of the continuance,” “[wJhether trial counsel is engaged
in another trial,” “[w]hether all parties have stipulated to a continuance,” “[w]hether the interests
of justice are best served by a continuance.” and “[a]ny other fact or circumstance relevant to the
fair determination of the motion or application.” Cal. Rules of Ct., Rule 3.1332(d).
The decision to grant a continuance is left to the sound discretion of the trial court.
Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395. Where the basis for the
request for a continuance is based on a party’s need for time adequately to prepare a defense, the
trial court should weigh that requirement over concerns of expeditious disposition of a case.
“[D]ecisions about whether to grant a continuance or extend discovery ‘must be made in an
atmosphere of substantial justice. When the two policies collide head-on, the strong public policy
favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.””we
un
Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246, quoting Bahl v. Bank of
America (2001) 89 Cal. App.4th 389, 398-399. “While it is true that a trial judge must have
control of the courtroom and its calendar and must have discretion to deny a request for a
continuance when there is no good cause for granting one, it is equally true that, absent [a lack of
diligence or other abusive] circumstances which are not present in this case, a request for a
continuance supported by a showing of good cause usually ought to be granted.” /d. at pp. 1246-
1247, quoting Estate of Meeker (1993) 13 Cal.App.4th 1099, 1105.
Good cause supports granting the Parties request to vacate the trial and all trial-related
deadlines, or in the alternative, to continue the trial and trial-related deadlines for at least 180 days,
pursuant to California Rule of Court 3.1332(c) and (d) and the foregoing authorities, for the
following reasons:
e The addition of a new party if: (a) [t]he new party has not had a reasonable
opportunity to conduct discovery and prepare for trial; or (b) [t]he other parties
have not had a reasonable opportunity to conduct discovery and prepare for trial in
regard to the new party's involvement in the case (Cal. R. of Ct., R. 3.1332(c)(5));
e A party's excused inability to obtain essential testimony, documents, or other
material evidence despite diligent efforts (Cal. R. of Ct., R. 3.1332(c)(6)); or
e A significant, unanticipated change in the status of the case as a result of which
the case is not ready for trial (Cal. R. of Ct., R. 3.1332(c)(6));
¢ Defendants require the opportunity to gather and complete needed fact discovery
prior to trial in order to prepare their expert witnesses and to complete their trial
preparations (Cal. R. of Ct., R. 3.1332(d)(10));
e The length of the continuance is relatively short, just 120 days, a length of time
based on defense counsel’s trial conflicts and the amount of time defense counsel
reasonably believes is required to complete necessary discovery (Cal. R. of Ct, R.
3.1332(d)(3));
e No party will be prejudiced by the continuance (Cal. R. of Ct., R. 3.1332(d)(5));
andBe win
¢ The Parties believe additional time to pursue an informal resolution, especially in
light of the additional claims at issue, may result in settlement of the action,
obviating the need for a trial (Cal. R. of Ct., R. 3.1332(d)(10), (11)).
The above factors each support a finding of good cause to vacate the trial date and all trial-related
deadlines or, alternatively, continue the trial date and all trial-related deadlines for at least 180
days. Accordingly, Defendants ask that the Court exercise its discretion and continue the trial, and
trial related deadlines (expert disclosure, fact discovery cutoff, motions cutoff, and expert
discovery cutoff), for a period of 120 days.
IV. CONCLUSION
For the reasons set forth above, the Parties respectfully request that this Court grant their
request and vacate the trial date, or continue the matter for 180 days so that the case can be at issue
as to all parties and claims, and the Parties and complete fact and expert discovery prior to a trial
on the merits.
Dated: March 23, 2016 THE CHANLER GROUP
Attorneys for Plaintiff
WHITNEY R. LEEMAN
Dated: March 23, 2016 GORDON & REES LLP
“Brian M. Ledget-—< 7
Attorneys for Defendants NEWEGG, INC.,
MAGNELL ASSOCIATE, INC., and
ROSEWILL, INC.
JOINT EX PARTE APPLICATION FOR ORDER VACATING OR CONTINUING TRIAL DATE,
Preview
we ta BRIAN C. JOHNSON, SBN 235695 Email: brian@chanler.com THE CHANLER GROUP 2560 Ninth Street, Suite 214 Berkeley, CA 94710 Telephone: (510) 848-8880 Facsimile: (510) 848-8118 Attorneys for Plaintiff WHITNEY R. LEEMAN, PH.D. BRIAN M. LEDGER, SBN 156942 Email: bledger@gordonrees.com GORDON & REES LLP 101 W. Broadway Suite 2000 San Diego, CA 92101 Telephone: (619) 696-6700 Facsimile: (619) 696-7124 Attorneys for Defendants NEWEGG, INC., MAGNELL ASSOCIATE, INC. and ROSEWILL, INC. ELECTRONICALLY FILED Superior Court of Caitfornia, County of San Francisco 03/24/2016 Clerk of the Court BY:BOWMAN LIU Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO WHITNEY R. LEEMAN, PH.D., Plaintiff, v. NEWEGG INC., e7 al., Defendants. Case No. CGC-14-542330 JOINT EX PARTE APPLICATION, FOR ORDER VACATING TRIAL DATE OR ALTERNATIVELY CONTINUING TRIAL FOR 180 DAYS Date: March 24, 2016 Time: 11:00 a.m. Dept.: 206 Judge: Hon. John K. Stewart (California Rules of Court, Rules 3.1200 et seq. and 3.1332(b)) JOINT EX PARTE APPLICATION FOR ORDER VACATING OR CONTINUING TRIAL DATEwe un I INTRODUCTION Plaintiff WHITNEY R. LEEMAN, PH.D. (“Leeman”) and defendants NEWEGG, INC., MAGNELL ASSOCIATE, INC. and ROSEWILL, INC. (collectively “Defendants” and with Leeman the “Parties”) submit the following ex parte application for an order vacating the trial date and all trial-related deadlines in the captioned matter or, in the alternative, continuing the trial date and all trial-related deadlines for 180 days. The trial is currently set for May 16, 2016 and this date, in the interest of party and judicial economy and resources should be vacated. Good cause exists to support this request, as Leeman intends to file an amended pleading adding two additional defendants, and three additional products to the claims at issue in this litigation. This is the first request to vacate the trial date. Defendants previously moved the Court for an order continuing the January 16, 2016, initial trial date which the Court granted. The Parties are also engaged in settlement discussions which, if successful, may obviate the need for a trial. I. BACKGROUND Plaintiff sued Defendants under Proposition 65, alleging a failure to warn consumers of the health hazards associated with exposures to di(2-ethylhexyl) phthalate (“DEHP”), a toxic phthalate chemical that Leeman alleges is present in the vinyl/PVC cords and other components of headsets sold by Defendants in California. (See Compl.; Decl. of Brian Johnson (“Johnson Decl.”) 4 2.) The trial in this case is now set for May 16, 2016. (Johnson Decl. 3.) The undersigned counsel will represent the Parties at trial. (/d.) On March 23, 2016, Leeman served defendants with a Supplemental 60-Day Notice of Violation of Proposition 65 (“Supplemental Notice.”) A true and correct copy of the Supplemental Notice is attached as Exhibit A to the Johnson Decl. (Johnson Decl, 5.) The Supplemental Notice adds three products not alleged in the complaint (two additional headsets, and a backpack with vinyl components containing DEHP, as well as two alleged violators (retail customers of Defendants) who plaintiff intends to name as defendants in this action after perfecting standing to do so. Plaintiff will not have standing to file an amended pleading adding the parties and claims that are the subject of the Supplemental Notice, however, until June 1, 2016. Once the applicable 60-day period has run, assuming no public enforcer elects to pursue her alleged claims, Leemanwe un will file an amended pleading so that any settlement or judgment resulting from this action includes all potential parties and claims. See, generally, Health & Safety Code § 25249.7(d). In addition to Leeman’s need to perfect standing before bringing her claims to enforce the alleged violations and pursue the parties identified in the Supplemental Notice, the Parties also need additional time in which to complete fact discovery (as to the added claims and defendants) and consider the potential for settlement. (Johnson Decl. { 7.) In order to adequately prepare their respective cases for trial, and prepare their consultants for expert discovery, the parties need to propound and respond to written discovery pertaining to Leeman’s newly-alleged claims and Defendants’ products that are the subject of those claims, as well as take party and expert depositions. Those entities Leeman intends to add as defendants will also need to engage in fact discovery and depositions in order to prepare their cases for any trial that may follow. The Parties believe that the current trial date should be vacated. They are amenable, however, to a continuance of at least 180 days, and while this certain date may be workable, it will not be without it’s challenges, as Leeman cannot add further defendants for more than 60 days, and the case will not be at issue until at least another 40 days beyond that time. (Johnson Decl. § 13.) Therefore, the Parties request that the Court vacate the trial date and all trial-related deadlines (fact discovery cutoff, motions cutoff, expert exchange deadline, and expert discovery cutoff) or alternatively continue the trial for 180 days along with all trial-related deadlines. The Parties are submitting a stipulation and proposed order to this effect with this ex parte application. This motion is being filed as soon as practicable. Leeman’s counsel only completed their analysis of the merit of the newly-added claims against Defendants within the last two weeks. (Johnson Decl. 6.) On March 23, 2016, Leeman served the Supplemental Notice that will allow her standing to amend her pleading to add these parties and claims. (Id.) The Court granted Defendants a continuance of 120 days late last year. (Johnson Decl. § 15.) No parties will be prejudiced by a continuance. (Johnson Decl. § 13.) No party will be prejudiced by vacating the trial date, in fact doing so will save significant party and judicial resources and avoid a second action, litigation, and trial on Leeman’s most recent claims. (Id.)Ill. GOOD CAUSE EXISTS TO GRANT THIS REQUEST AND VACATE THE TRIAL DATE AND ALL AND TRIAL-RELATED DATES, BASED ON PLAITIFF’S DITIONAL CLAIMS AGAINST DEFENDANTS AND OTHER THEIR CHAIN OF DISTRIBUTION The California Rules of Court provide, in relevant part, the following grounds supporting good cause to grant a request to continue a trial date: OR Re (4) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (5) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (6) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. Cal. Rules of Ct., Rule 3.1332(c). Additional factors that may indicate good cause for a trial continuance “[t]he prejudice that parties or witnesses will suffer as a result of the continuance,” “[wJhether trial counsel is engaged in another trial,” “[w]hether all parties have stipulated to a continuance,” “[w]hether the interests of justice are best served by a continuance.” and “[a]ny other fact or circumstance relevant to the fair determination of the motion or application.” Cal. Rules of Ct., Rule 3.1332(d). The decision to grant a continuance is left to the sound discretion of the trial court. Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395. Where the basis for the request for a continuance is based on a party’s need for time adequately to prepare a defense, the trial court should weigh that requirement over concerns of expeditious disposition of a case. “[D]ecisions about whether to grant a continuance or extend discovery ‘must be made in an atmosphere of substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.””we un Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246, quoting Bahl v. Bank of America (2001) 89 Cal. App.4th 389, 398-399. “While it is true that a trial judge must have control of the courtroom and its calendar and must have discretion to deny a request for a continuance when there is no good cause for granting one, it is equally true that, absent [a lack of diligence or other abusive] circumstances which are not present in this case, a request for a continuance supported by a showing of good cause usually ought to be granted.” /d. at pp. 1246- 1247, quoting Estate of Meeker (1993) 13 Cal.App.4th 1099, 1105. Good cause supports granting the Parties request to vacate the trial and all trial-related deadlines, or in the alternative, to continue the trial and trial-related deadlines for at least 180 days, pursuant to California Rule of Court 3.1332(c) and (d) and the foregoing authorities, for the following reasons: e The addition of a new party if: (a) [t]he new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (b) [t]he other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case (Cal. R. of Ct., R. 3.1332(c)(5)); e A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts (Cal. R. of Ct., R. 3.1332(c)(6)); or e A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial (Cal. R. of Ct., R. 3.1332(c)(6)); ¢ Defendants require the opportunity to gather and complete needed fact discovery prior to trial in order to prepare their expert witnesses and to complete their trial preparations (Cal. R. of Ct., R. 3.1332(d)(10)); e The length of the continuance is relatively short, just 120 days, a length of time based on defense counsel’s trial conflicts and the amount of time defense counsel reasonably believes is required to complete necessary discovery (Cal. R. of Ct, R. 3.1332(d)(3)); e No party will be prejudiced by the continuance (Cal. R. of Ct., R. 3.1332(d)(5)); andBe win ¢ The Parties believe additional time to pursue an informal resolution, especially in light of the additional claims at issue, may result in settlement of the action, obviating the need for a trial (Cal. R. of Ct., R. 3.1332(d)(10), (11)). The above factors each support a finding of good cause to vacate the trial date and all trial-related deadlines or, alternatively, continue the trial date and all trial-related deadlines for at least 180 days. Accordingly, Defendants ask that the Court exercise its discretion and continue the trial, and trial related deadlines (expert disclosure, fact discovery cutoff, motions cutoff, and expert discovery cutoff), for a period of 120 days. IV. CONCLUSION For the reasons set forth above, the Parties respectfully request that this Court grant their request and vacate the trial date, or continue the matter for 180 days so that the case can be at issue as to all parties and claims, and the Parties and complete fact and expert discovery prior to a trial on the merits. Dated: March 23, 2016 THE CHANLER GROUP Attorneys for Plaintiff WHITNEY R. LEEMAN Dated: March 23, 2016 GORDON & REES LLP “Brian M. Ledget-—< 7 Attorneys for Defendants NEWEGG, INC., MAGNELL ASSOCIATE, INC., and ROSEWILL, INC. JOINT EX PARTE APPLICATION FOR ORDER VACATING OR CONTINUING TRIAL DATE,