Preview
San Diego, CA 92101
Gordon & Rees LLP
101 W. Broadway Suite 2000
w
wn
ELECTRONICALLY
FILED
BRIAN M. LEDGER (SBN: 156942) elder eta dat Calan
Email: bledger@gordonrees.com County of San Francisco
GORDON & REES LLP
101 W. Broadway Suite 2000 hor eouae
San Diego, CA 92101 BY:ROMY RISK
Deputy Clerk
Telephone: (619) 696-6700
Facsimile: (619) 696-7124
Attorneys for Defendants
NEWEGG, INC., MAGNELL ASSOCIATE, INC. and ROSEWILL, INC.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
WHITNEY R. LEEMAN, PH.D.,
Plaintiff,
vs.
NEWEGG INC.; MAGNELL ASSOCIATE,
INC.; ROSEWILL, INC., and DOES 1-150,
Defendant.
L INTRODUCTION
eee
CASE NO. CGC-14-542330
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF EX
PARTE APPLICATION FOR 120-
DAY CONTINUANCE OF THE
TRIAL AND TRIAL- RELATED
DATES
FILED CONCURRENTLY WITH:
1. Notice of Ex Parte Application
2. Ex Parte Application
3. Declaration of Brian Ledger in
Support of Ex Parte Application
4. [Proposed] Order
Date: November 17, 2015
Time: 11:00 a.m.
Dept: 206
Defendants NEWEGG, INC., MAGNELL ASSOCIATE, INC. and ROSEWILL, INC.
(hereafter “Defendants”) apply ex parte for a 120-day continuance of the January 19, 2016 trial
and all trial-related deadlines in the above-captioned matter. Defendants need this brief
continuance because their trial counsel has a conflicting trial on January 11, 2016, and that trial
cannot be moved because of an imminent issue with the five-year trial cutoff. Defendants need a
continuance of 120 days in order to complete necessary fact discovery, and to have sufficient
time in which to pursue settlement. This is the first time any party has requested a continuance
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR
120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101
Gordon & Rees LLP
101 W. Broadway Suite 2000
w
wn
of the January 19, 2016 trial and related dates. Plaintiff's counsel was given notice of this ex
parte application before 10:00 a.m. on November 16, 2015 (specifically, Plaintiff's counsel was
given notice of this ex parte application on November 12, 2015), which satisfies the notice
requirements for an ex parte application pursuant to California Rule of Court 3.1203.
I. PERTINENT BACKGROUND
Plaintiff has sued Defendants under Proposition 65, alleging that defendants have failed
to adequately warn consumers of the alleged presence of di(2-ethylhexyl) phthalate (“DEHP”) in
vinyl/PVC cords and other components of headsets sold by Defendants in California. (See
Compl. Decl. of Brian Ledger (“Ledger Decl.”) | 2.)
The trial in this case is currently scheduled for January 19, 2016. (Ledger Decl. {j 3.)
Brian Ledger will be trial counsel for Defendants. (/bid.) Mr. Ledger is also trial counsel in a
matter that has a trial date of January 11, 2016, in the matter of Andreas Vellios vs. UMSE, et
al., Los Angeles Superior Court Case No. BC434872, Judge Terry Green, presiding. (Ledger
Decl. 4.) That trial date cannot be moved, as the case is on the brink of exceeding the five-year
trial deadline under Code of Civil Procedure section 583.310. (/bid.) Trial in that action is
estimated to last 20-25 court days. (/bid.) In addition, Mr. Ledger is lead trial counsel in a
matter pending in the Court of Common Pleas, Philadelphia County, Pennsylvania, Louis
Desorbo v. United States Steel Corporation, et al., Case No. 03450, with a trial date of February
1, 2016. (dbid.) Further, Mr. Ledger is trial counsel in a matter pending in the United States
District Court for the Central District of California, Housing Authority of the City of Los Angeles
v. PCC Technical Industries, Inc., Case No. 2:11-cv-01626 FMO (CWx), with a trial date of
February 9, 2016. (/bid.) That trial is a CERCLA action estimated to last 3-4 trial weeks, has
already been continued twice, and the court indicated at a recent hearing that there would be no
further continuances. (/bid.)
In addition to the conflict with trial dates in the foregoing matters, Defendants need
additional time in which to complete fact discovery and pursue settlement. (Ledger Decl. 7 5.)
Since Defendants appeared in this action, counsel have been engaged in efforts to resolve this
case informally, and continued efforts in that regard may prove successful. (/bid.) In the interest
-2-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR
120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101
Gordon & Rees LLP
101 W. Broadway Suite 2000
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wn
of efficiency, Defendants’ resources have been focused on settlement rather than protracted
litigation. (Ledger Decl. [ 6.) For that reason, Defendants have necessary fact discovery left to
complete. (/bid.) In order to adequately prepare Defendants’ defense, and to prepare experts for
expert discovery, Defendants need additional time in which to complete fact discovery, including
written discovery (which was recently served on Plaintiff). (/bid.)
Defense counsel estimates that 120 days will provide sufficient time in which to complete
remaining fact discovery, which is necessary both to prepare Defendants’ expert witness, and to
adequately complete trial preparations. (Ledger Decl. § 7.) Therefore, Defendants are
requesting a 120-day continuance of the trial and all trial-related deadlines (fact discovery cutoff,
motions cutoff, expert exchange deadline, and expert discovery cutoff). (/bid.) Counsel for
Defendants has been in communication with counsel for Plaintiff and had anticipated the parties
would be stipulating to a request for trial continuance. (Ledger Decl. { 8.) However, Plaintiff's
counsel recently indicated they will not so stipulate, necessitating this ex parte application.
(/bid.) This application is being filed as soon as practicable after defense counsel learned of
Plaintiff's counsel’s position regarding the stipulation. (/bid.) This is the first time any party has
requested a continuance of the trial in this action. (Ledger Decl. § 9.) No parties will be
prejudiced by a continuance. (Jbid.)
Expert witness designation is scheduled to take place on December 7, 2015. (Ledger
Decl. ¥ 10.) Irreparable harm will result if this request is not considered on an ex parte basis,
because Defendants will have to disclose their experts without having had the opportunity to
complete needed fact discovery, which Defendants require not only in order to prepare their
experts for deposition, but also so they can adequately assess the scope of needed expert
testimony. (/bid.)
Plaintiff’s counsel received appropriate ex parte notice regarding this ex parte application
via a letter served on Plaintiffs counsel by facsimile on November 12, 2015. (Ledger Decl. § 11,
Exh. A.) As of the date of this application, Plaintiff's counsel has not communicated any intent
to oppose the application. (/bid.)
Pursuant to Local Rule 6.0, Monday, May 16, 2016, is a trial date that would be
-3-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR
120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101
Gordon & Rees LLP
101 W. Broadway Suite 2000
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wn
practicable for Defendants.
Ill. GOOD CAUSE EXISTS TO GRANT THIS FIRST-TIME REQUEST FOR A 120-
DAY CONTINUANCE OF THE TRIAL AND TRIAL-RELATED DATES, BASED
ON DEFENSE COUNSEL’S CONFLICTING TRIAL SCHEDULE, THE NEED
TO OBTAIN NECESSARY DISCOVERY, AND THE OPPORTUNITY TO
SETTLE THIS ACTION
California Rules of Court, Rule 3.1332, provides in pertinent part:
The court may grant a continuance based on an affirmative showing of good cause
requiring the continuance. Circumstances that may indicate good cause include:
(1) The unavailability of an essential lay or expert witness because of death, illness, or
other excusable circumstances;
(2) The unavailability of a party because of death, illness, or other excusable
circumstances;
(3) The unavailability of trial counsel because of death, illness, or other excusable
circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that
the substitution is required in the interests of justice;
(5) The addition of a new party ift
(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;
(6) A party's excused inability to obtain essential testimony, documents, or other material
evidence despite diligent efforts; or
(7) 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 include “[w]hether
there was any previous continuance, extension of time, or delay of trial due to any party,” “[t]he
length of the continuance requested,” “[t]he prejudice that parties or witnesses will suffer as a
4.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR
120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101
Gordon & Rees LLP
101 W. Broadway Suite 2000
w
wn
result of the continuance,” “[w]hether trial counsel is engaged in another trial,” and “[w]hether
the interests of justice are best served by a continuance.” (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.””
(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 Defendants’ request for a 120-day continuance of trial and
trial-related deadlines, pursuant to California Rule of Court 3.1332(c) and (d) and the foregoing
authorities, for the following reasons:
¢ Defendants’ trial counsel has a conflicting trial (see Cal. R. of Ct, R.
3.1332(d)(8));
e There have been no previous requests for trial continuance (see Cal. R. of Ct., R.
3.1332(d)(2));
e 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 (see 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
-5-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR
120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101
Gordon & Rees LLP
101 W. Broadway Suite 2000
w
wn
counsel reasonably believes is required to complete necessary discovery (see
Cal. R. of Ct, R. 3.1332(d)(3));
© No party will be prejudiced by the continuance (see Cal. R. of Ct., R.
3.1332(d)(5)); and
e Defendants believe additional time to pursue informal resolution may result in
settlement of this action without the need for trial (see Cal. R. of Ct., R.
3.1332(d)(10), (11).
All of these reasons support a finding of good cause to grant this first continuance
request. 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. GOOD CAUSE EXISTS TO GRANT THIS APPLICATION ON AN EX PARTE
BASIS
Good cause exists to grant this application on an ex parte basis because irreparable harm
will result if it had to be heard on fully noticed motion. (Cal. Rules of Court, R. 3.1202(c).)
Expert witness designation is scheduled to take place on December 7, 2015. (Ledger Decl. § 10.)
Irreparable harm will result if this request is not considered on an ex parte basis, because
Defendants will have to disclose their experts without having had the opportunity to complete
needed fact discovery, which Defendants require not only in order to prepare their experts for
deposition, but also so they can adequately assess the scope of needed expert testimony. (Ibid.)
Plaintiff's counsel received appropriate ex parte notice regarding this ex parte application
via a letter served on Plaintiffs counsel by facsimile on November 12, 2015. (Ledger Decl. § 11,
Exh. A.) As of the date this application is being filed with the Court, no party has indicated any
intent to oppose. (/bid.)
Mf
Mf
ltd
Itt
-6-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR
120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESGordon & Rees LLP
101 W. Broadway Suite 2000
San Diego, CA 92101
1101888/25763608%.1
28
Iv.
CONCLUSION
For the reasons set forth above, Defendants respectfully request that this Court grant their
ex parte application for a 120-day continuance of the trial and trial-related dates in this action.
Dated: November 13, 2015 GORDON & REES LLP
7 £2 tte
Brian M. Ledger
Attorney for Defendants NEWEGG,
INC., MAGNELL ASSOCIATE,
INC. and ROSEWILL, INC.
-7-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR
120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101
Gordon & Rees LLP
101 W. Broadway Suite 2000
NEGGi1 1018882183308 Iv.
PROOF OF SERVICE
Tama resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is: Gordon & Rees LLP 101 W. Broadway Suite 2000,
San Diego, CA 92101. On November 13, 2015, I served the within documents:
1. EX PARTE APPLICATION FOR FIRST CONTINUANCE OF TRIAL AND
RELATED DATES
2. NOTICE OF EX PARTE APPLICATION FOR FIRST CONTINUANCE OF
TRIAL AND RELATED DATES
3. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX
PARTE APPLICATION FOR 120-DAY CONTINUANCE OF THE TRIAL AND TRIAL-
RELATED DATES
4, DECLARATION OF BRIAN LEDGER IN SUPPORT OF EX PARTE
APPLICATION FOR FIRST CONTINUANCE OF TRIAL AND RELATED DATES
5. [PROPOSED] ORDER GRANTING EX PARTE APPLICATION FOR FIRST.
CONTINUANCE OF TRIAL AND RELATED DATES.
by transmitting via facsimile the document(s) listed above to the fax number(s) set
forth below on this date before 5:00 p.m.
o by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in United States mail in the State of California addressed as set forth
below.
Oo by placing a true copy thereof enclosed in a sealed envelope, at a station designated
for collection and processing of envelopes and packages for overnight delivery by
FedEx as part of the ordinary business practices of Gordon & Rees LLP described
below, addressed as follows:
Brian C. Johnson
Josh Voorhees
The Chanler Group
2560 Ninth Street
Parker Plaza, Suite 214
Berkeley, California 94710-2565
Tel: 510-848-8880
Fax: 510-848-8118
Attorneys for Plaintiff WHITNEY R. LEEMAN, PH.D.
Tam readily familiar with the firm’s practice of collection and processing correspondence
for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after the date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
Executed on November 13, 2015 at San Diego, California.
Mase:
Maria GQnzale
i
Proof of Service
Preview
San Diego, CA 92101 Gordon & Rees LLP 101 W. Broadway Suite 2000 w wn ELECTRONICALLY FILED BRIAN M. LEDGER (SBN: 156942) elder eta dat Calan Email: bledger@gordonrees.com County of San Francisco GORDON & REES LLP 101 W. Broadway Suite 2000 hor eouae San Diego, CA 92101 BY:ROMY RISK Deputy Clerk Telephone: (619) 696-6700 Facsimile: (619) 696-7124 Attorneys for Defendants NEWEGG, INC., MAGNELL ASSOCIATE, INC. and ROSEWILL, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO WHITNEY R. LEEMAN, PH.D., Plaintiff, vs. NEWEGG INC.; MAGNELL ASSOCIATE, INC.; ROSEWILL, INC., and DOES 1-150, Defendant. L INTRODUCTION eee CASE NO. CGC-14-542330 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR 120- DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATES FILED CONCURRENTLY WITH: 1. Notice of Ex Parte Application 2. Ex Parte Application 3. Declaration of Brian Ledger in Support of Ex Parte Application 4. [Proposed] Order Date: November 17, 2015 Time: 11:00 a.m. Dept: 206 Defendants NEWEGG, INC., MAGNELL ASSOCIATE, INC. and ROSEWILL, INC. (hereafter “Defendants”) apply ex parte for a 120-day continuance of the January 19, 2016 trial and all trial-related deadlines in the above-captioned matter. Defendants need this brief continuance because their trial counsel has a conflicting trial on January 11, 2016, and that trial cannot be moved because of an imminent issue with the five-year trial cutoff. Defendants need a continuance of 120 days in order to complete necessary fact discovery, and to have sufficient time in which to pursue settlement. This is the first time any party has requested a continuance MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR 120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101 Gordon & Rees LLP 101 W. Broadway Suite 2000 w wn of the January 19, 2016 trial and related dates. Plaintiff's counsel was given notice of this ex parte application before 10:00 a.m. on November 16, 2015 (specifically, Plaintiff's counsel was given notice of this ex parte application on November 12, 2015), which satisfies the notice requirements for an ex parte application pursuant to California Rule of Court 3.1203. I. PERTINENT BACKGROUND Plaintiff has sued Defendants under Proposition 65, alleging that defendants have failed to adequately warn consumers of the alleged presence of di(2-ethylhexyl) phthalate (“DEHP”) in vinyl/PVC cords and other components of headsets sold by Defendants in California. (See Compl. Decl. of Brian Ledger (“Ledger Decl.”) | 2.) The trial in this case is currently scheduled for January 19, 2016. (Ledger Decl. {j 3.) Brian Ledger will be trial counsel for Defendants. (/bid.) Mr. Ledger is also trial counsel in a matter that has a trial date of January 11, 2016, in the matter of Andreas Vellios vs. UMSE, et al., Los Angeles Superior Court Case No. BC434872, Judge Terry Green, presiding. (Ledger Decl. 4.) That trial date cannot be moved, as the case is on the brink of exceeding the five-year trial deadline under Code of Civil Procedure section 583.310. (/bid.) Trial in that action is estimated to last 20-25 court days. (/bid.) In addition, Mr. Ledger is lead trial counsel in a matter pending in the Court of Common Pleas, Philadelphia County, Pennsylvania, Louis Desorbo v. United States Steel Corporation, et al., Case No. 03450, with a trial date of February 1, 2016. (dbid.) Further, Mr. Ledger is trial counsel in a matter pending in the United States District Court for the Central District of California, Housing Authority of the City of Los Angeles v. PCC Technical Industries, Inc., Case No. 2:11-cv-01626 FMO (CWx), with a trial date of February 9, 2016. (/bid.) That trial is a CERCLA action estimated to last 3-4 trial weeks, has already been continued twice, and the court indicated at a recent hearing that there would be no further continuances. (/bid.) In addition to the conflict with trial dates in the foregoing matters, Defendants need additional time in which to complete fact discovery and pursue settlement. (Ledger Decl. 7 5.) Since Defendants appeared in this action, counsel have been engaged in efforts to resolve this case informally, and continued efforts in that regard may prove successful. (/bid.) In the interest -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR 120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101 Gordon & Rees LLP 101 W. Broadway Suite 2000 w wn of efficiency, Defendants’ resources have been focused on settlement rather than protracted litigation. (Ledger Decl. [ 6.) For that reason, Defendants have necessary fact discovery left to complete. (/bid.) In order to adequately prepare Defendants’ defense, and to prepare experts for expert discovery, Defendants need additional time in which to complete fact discovery, including written discovery (which was recently served on Plaintiff). (/bid.) Defense counsel estimates that 120 days will provide sufficient time in which to complete remaining fact discovery, which is necessary both to prepare Defendants’ expert witness, and to adequately complete trial preparations. (Ledger Decl. § 7.) Therefore, Defendants are requesting a 120-day continuance of the trial and all trial-related deadlines (fact discovery cutoff, motions cutoff, expert exchange deadline, and expert discovery cutoff). (/bid.) Counsel for Defendants has been in communication with counsel for Plaintiff and had anticipated the parties would be stipulating to a request for trial continuance. (Ledger Decl. { 8.) However, Plaintiff's counsel recently indicated they will not so stipulate, necessitating this ex parte application. (/bid.) This application is being filed as soon as practicable after defense counsel learned of Plaintiff's counsel’s position regarding the stipulation. (/bid.) This is the first time any party has requested a continuance of the trial in this action. (Ledger Decl. § 9.) No parties will be prejudiced by a continuance. (Jbid.) Expert witness designation is scheduled to take place on December 7, 2015. (Ledger Decl. ¥ 10.) Irreparable harm will result if this request is not considered on an ex parte basis, because Defendants will have to disclose their experts without having had the opportunity to complete needed fact discovery, which Defendants require not only in order to prepare their experts for deposition, but also so they can adequately assess the scope of needed expert testimony. (/bid.) Plaintiff’s counsel received appropriate ex parte notice regarding this ex parte application via a letter served on Plaintiffs counsel by facsimile on November 12, 2015. (Ledger Decl. § 11, Exh. A.) As of the date of this application, Plaintiff's counsel has not communicated any intent to oppose the application. (/bid.) Pursuant to Local Rule 6.0, Monday, May 16, 2016, is a trial date that would be -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR 120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101 Gordon & Rees LLP 101 W. Broadway Suite 2000 w wn practicable for Defendants. Ill. GOOD CAUSE EXISTS TO GRANT THIS FIRST-TIME REQUEST FOR A 120- DAY CONTINUANCE OF THE TRIAL AND TRIAL-RELATED DATES, BASED ON DEFENSE COUNSEL’S CONFLICTING TRIAL SCHEDULE, THE NEED TO OBTAIN NECESSARY DISCOVERY, AND THE OPPORTUNITY TO SETTLE THIS ACTION California Rules of Court, Rule 3.1332, provides in pertinent part: The court may grant a continuance based on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party ift (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; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) 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 include “[w]hether there was any previous continuance, extension of time, or delay of trial due to any party,” “[t]he length of the continuance requested,” “[t]he prejudice that parties or witnesses will suffer as a 4. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR 120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101 Gordon & Rees LLP 101 W. Broadway Suite 2000 w wn result of the continuance,” “[w]hether trial counsel is engaged in another trial,” and “[w]hether the interests of justice are best served by a continuance.” (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.”” (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 Defendants’ request for a 120-day continuance of trial and trial-related deadlines, pursuant to California Rule of Court 3.1332(c) and (d) and the foregoing authorities, for the following reasons: ¢ Defendants’ trial counsel has a conflicting trial (see Cal. R. of Ct, R. 3.1332(d)(8)); e There have been no previous requests for trial continuance (see Cal. R. of Ct., R. 3.1332(d)(2)); e 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 (see 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 -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR 120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101 Gordon & Rees LLP 101 W. Broadway Suite 2000 w wn counsel reasonably believes is required to complete necessary discovery (see Cal. R. of Ct, R. 3.1332(d)(3)); © No party will be prejudiced by the continuance (see Cal. R. of Ct., R. 3.1332(d)(5)); and e Defendants believe additional time to pursue informal resolution may result in settlement of this action without the need for trial (see Cal. R. of Ct., R. 3.1332(d)(10), (11). All of these reasons support a finding of good cause to grant this first continuance request. 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. GOOD CAUSE EXISTS TO GRANT THIS APPLICATION ON AN EX PARTE BASIS Good cause exists to grant this application on an ex parte basis because irreparable harm will result if it had to be heard on fully noticed motion. (Cal. Rules of Court, R. 3.1202(c).) Expert witness designation is scheduled to take place on December 7, 2015. (Ledger Decl. § 10.) Irreparable harm will result if this request is not considered on an ex parte basis, because Defendants will have to disclose their experts without having had the opportunity to complete needed fact discovery, which Defendants require not only in order to prepare their experts for deposition, but also so they can adequately assess the scope of needed expert testimony. (Ibid.) Plaintiff's counsel received appropriate ex parte notice regarding this ex parte application via a letter served on Plaintiffs counsel by facsimile on November 12, 2015. (Ledger Decl. § 11, Exh. A.) As of the date this application is being filed with the Court, no party has indicated any intent to oppose. (/bid.) Mf Mf ltd Itt -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR 120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESGordon & Rees LLP 101 W. Broadway Suite 2000 San Diego, CA 92101 1101888/25763608%.1 28 Iv. CONCLUSION For the reasons set forth above, Defendants respectfully request that this Court grant their ex parte application for a 120-day continuance of the trial and trial-related dates in this action. Dated: November 13, 2015 GORDON & REES LLP 7 £2 tte Brian M. Ledger Attorney for Defendants NEWEGG, INC., MAGNELL ASSOCIATE, INC. and ROSEWILL, INC. -7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR 120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATESSan Diego, CA 92101 Gordon & Rees LLP 101 W. Broadway Suite 2000 NEGGi1 1018882183308 Iv. PROOF OF SERVICE Tama resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is: Gordon & Rees LLP 101 W. Broadway Suite 2000, San Diego, CA 92101. On November 13, 2015, I served the within documents: 1. EX PARTE APPLICATION FOR FIRST CONTINUANCE OF TRIAL AND RELATED DATES 2. NOTICE OF EX PARTE APPLICATION FOR FIRST CONTINUANCE OF TRIAL AND RELATED DATES 3. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR 120-DAY CONTINUANCE OF THE TRIAL AND TRIAL- RELATED DATES 4, DECLARATION OF BRIAN LEDGER IN SUPPORT OF EX PARTE APPLICATION FOR FIRST CONTINUANCE OF TRIAL AND RELATED DATES 5. [PROPOSED] ORDER GRANTING EX PARTE APPLICATION FOR FIRST. CONTINUANCE OF TRIAL AND RELATED DATES. by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. o by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in United States mail in the State of California addressed as set forth below. Oo by placing a true copy thereof enclosed in a sealed envelope, at a station designated for collection and processing of envelopes and packages for overnight delivery by FedEx as part of the ordinary business practices of Gordon & Rees LLP described below, addressed as follows: Brian C. Johnson Josh Voorhees The Chanler Group 2560 Ninth Street Parker Plaza, Suite 214 Berkeley, California 94710-2565 Tel: 510-848-8880 Fax: 510-848-8118 Attorneys for Plaintiff WHITNEY R. LEEMAN, PH.D. Tam readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 13, 2015 at San Diego, California. Mase: Maria GQnzale i Proof of Service