Gregory M. Sheffer, State Bar No. 173124 Clifford A. Chanler, State Bar No.

135534 SHEFFER & CHANLER LLP 4400 Keller Avenue, Suite 200 Oakland, CA 94605 Tel: (510) 577-0747 Fax: (510) 577-0787 Attorneys for Plaintiff MICHAEL DIPIRRO SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA, OAKLAND BRANCH UNLIMITED CIVIL JURISDICTION MICHAEL DIPIRRO, ) ) Plaintiff, ) ) v. ) ) ACE HARDWARE CORPORATION; ADAMS ) APPLE DISTRIBUTING, L.P.; ANGELO ) BROTHERS COMPANY; BARNETT, INC.; ) BARNETT BRASS & COPPER, INC.; BIG ) LOTS, INC.; BULBRITE INDUSTRIES; ) COLEMAN CABLE SYSTEMS, INC.; EAST ) WEST DISTRIBUTING CO.; GENERAL ) ELECTRIC COMPANY; HOME DEPOT, INC.; ) IKEA; INTERNATIONAL MARKETING ) CORPORATION; JO-ANN STORES, INC.; ) LINENS ‘N THINGS; LONGS DRUG ) STORES CORPORATION; LOWE’S HIW, ) INC.; ORCHARD SUPPLY HARDWARE ) CORPORATION; PANASONIC COMPANY; ) MATSUSHITA ELECTRIC INDUSTRIAL CO., ) LTD.; PHILIPS LIGHTING COMPANY; ) PHILIPS ELECTRONICS NORTH AMERICA ) CORP.; RALEY’S, INC.; SAFEWAY INC.; ) SUNBEAM PRODUCTS, INC.; SUPER ) STORE INDUSTRIES; TARGET ) CORPORATION; URBAN OUTFITTERS, ) INC.; WAL-MART STORES, INC.; ) WALGREEN CO.; WESTINGHOUSE ) ELECTRIC CORPORATION; and DOES 1 ) through 1000, ) Defendants. ) No. 02-046321 PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT Date: November 21, 2002 Dept: 22 Time: 9:30 a.m. Judge: Hon. Ronald M. Sabraw

Plaintiff proposed stipulations to the defendants in the Ace and Angelo Brothers case to strike certain irrelevant. Plaintiff does not believe this Court has yet signed this Order and plaintiff has not been served with the Order. A stipulation was reached and will be presented to this Court for signature and Order upon Stipulation. J. Case Management Conference. the following defendants filed the following fifteen motions: Ace Motion to Strike Portions of Plaintiff’s Complaint PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT 2 . the parties have met and conferred over the past few weeks regarding proposed stipulations to revise the pleadings and other case management issues. Plaintiff offered a proposed stipulation to Panasonic/Matsushita in the Ace case to allow such defendant to receive the benefit of this Court’s Order regarding the Proposition 65 and UCL claims in plaintiff’s First and Second Causes of Action. ITEMS THAT THE PARTIES HAVE AGREED TO As ordered. The parties met and conferred on the proposed stipulations but no stipulation was entered in either case to strike any allegations. Meeder. improper or other allegations from each Complaint. A proposed Order and comments were sent to the Court by Mr. A.Pursuant to the October 3. PENDING MOTIONS On or before October 31. B. 2002. Plaintiff and Defendants first met and conferred on the appropriate form of Order from the October 2. 2002. Case Management Order of this Court. plaintiff Michael DiPirro ("DiPirro") hereby submits this Supplemental Complex Case Management Conference Statement. 2002.

Motion for Judgment on the Pleadings Motion for Order to Deny Jury Trial Angelo Brothers Motion to Strike Portions of Plaintiff’s Complaint Motion for Judgment on the Pleadings Motion for Order to Deny Jury Trial Feit Motion for Judgment on the Pleadings as to the Third Cause of Action Motion for Order to Deny Jury Trial Sears Motion for Judgment on the Pleadings as to the Third Cause of Action Motion for Order to Deny Jury Trial Osram Motion for Judgment on the Pleadings as to the Third Cause of Action Motion for Order to Deny Jury Trial Satco Motion for Judgment on the Pleadings Motion for Order to Deny Jury Trial Motion to Compel As to the Motions to Strike. and insufficiently specific by generally requesting the striking of unspecified allegations that are not only true and proper. plaintiff submits that defendants’ motion is untimely under CCP § 435 and improper under CCP § 436. overbroad. but that are relevant to plaintiff’s remaining Third Cause of Action under Business & Professions Code §§ 17500/17200 (hereafter “B&P Code §§ 17500/17200”). Plaintiff further submits the motion on the grounds that it is sweeping. Plaintiff also submits that the remedies requested for his Third Cause of Action attempts only to properly control defendants’ advertising activity occurring within this State and PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT 3 .

and provide defendants with both the requisite understanding of what “statements” are at issue and what the nature of the alleged deceptive practices are – light bulb marketing that fails to identify the presence of lead. the Legislature. straightforward. on the bulbs and fails to include a clear and reasonable warning about that toxin. defendants’ marketing scheme is likely to mislead the public and this Court must thus find that a cause of action for misleading and deceptive advertising has been properly pleaded PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT 4 . Plaintiff further opposes defendants’ Motion on the grounds that it improperly requests this Court to test the accuracy of the allegations prematurely. as defendants insistently (and equally incorrectly) argue. The law simply does not require identification of the specific “statements” or representations of that marketing scheme. there can be no doubt as to plaintiff’s remaining theory of liability and asserted basis for recovery.not. does not require allegations of actual reliance upon that scheme and does not require allegations of actual injury from that scheme. By reaching only advertising activity occurring within this State. and that consumers are likely to be deceived by such scheme. have properly limited the scope of B&P Code §§ 17500/17200 so as to not offend the constitutional considerations of due process and interstate commerce. Assuming all of the allegations are true. plaintiff submits that plaintiff’s Third Cause of Action sufficiently alleges that defendants engaged in a marketing scheme to mislead consumers. after this Courts’ ruling on defendants’ Demurrers. and plaintiff. Finally. that all of defendants’ marketing statements conformed to that scheme. As to the Motions for Judgment on the Pleadings. defendants’ sales of the products outside of this State. a toxin. Plaintiff’s allegations are simple. plaintiff further objects to the legally and procedurally unsupported request by defendants to have him amend the Complaint to clarify the remaining allegations as.

defendants do not cite any case interpreting CCP § 187 to support its asserted procedural basis for bringing this motion at this time. Accordingly. Sears could have brought a “motion to strike” plaintiff’s jury demand in a timely manner earlier in the litigation. Accordingly. a Motion To Approve the settlement with defendants Adams Apple Distributing.under Business & Professions (hereafter "B&P”) Code §§ 17200 et seq. under certain circumstances. A Motion to Approve the settlement with defendant Bulbrite Industries is scheduled to be filed in the PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT 5 . Inc. plaintiff submits that defendants attempt to have its motion to deny a jury trial adjudicated under CCP §§ 187 and 1003. As to the Motions for Order Denying Jury Trial. LP and Urban Outfitters. These provisions simply do not authorize the defendant to bring this motion. for example. the Court orders the parties to brief the issue. plaintiff does not wish to have the issue decided simultaneously with the slew of other motions brought by the light bulb defendants. Sears can have this issue adjudicated at a later point in this proceeding if. and 17500 et seq. Even if the case law allows a party. In its moving papers. Moreover. Besides that which is described above. 2002. defendants have not shown any good cause to allow its motion to be heard at this time. but decided not to do so. plaintiff requests that the Court decline to adjudicate this motion at the present time. was heard and granted on October 4. the Court should summarily dismiss defendants’ motion. While plaintiff acknowledges that the right to a jury trial under Proposition 65 has not been adjudicated by any California appellate court (and is an important legal issue that needs to be settled by the judiciary in this state). to bring [what amounts to] an untimely motion to strike.

as stated. Plaintiff requests a trial date for each and believes that. STATUS OF CERTAIN SETTLEMENT NEGOTIATIONS Plaintiff has reached settlements with two defendants in the Ace case: Adams Apple and Urban Outfitters.next ten days. Plaintiff is in negotiation with certain other defendants though not necessarily close to resolving all issues predicated to settlement. Further. two. Plaintiff dismissed defendant Sunbeam Products. C. Inc. Sears. in the Ace case. perhaps one should trail the others. on November 13. In addition to the settlement with Adams Apple and Urban Outfitters. D. E. plaintiff was conceptually amenable to phasing the case if and only if his specific proposal was adopted by this Court. and Satco. The parties have agreed to a stay of Sears (as a retailer) and does not request a trial date for the Sears case. discovery on all issues in each case must be completed before dispositive motion on the pleadings can be brought by plaintiff (and PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT 6 . POTENTIAL FOR CONSOLIDATION The Court took under submission the Case Management issues pertaining to Feit. Osram. Plaintiff has reached an agreement to resolve the claims against defendant Sunbeam Products. Plaintiff opposes any consolidation of the individual cases of Feit. plaintiff has settled with defendant Bulbrite Industries. THE POSSIBILITY OF UTILIZING A PHASED APPROACH IN THE CASES Prior to the recent rulings of this Court. plaintiff will not agree to any phased approach. Now that the Proposition 65 trials for the light bulb cases have been narrowed considerably to one. and Satco. Osram. Inc. or three cases involving a singular defendant in each case. 2002. Sears.

G. As to issues generally affecting the remaining defendants. defendants designate lead counsel to set up a web page for the purpose of posting the litigation schedule and agenda. Only after completion of discovery and determination of such dispositive motions will a discussion regarding phasing of the remaining issues be productive. As to issues generally affecting the remaining defendants. F. For those cases that are not sent to a trial department. Due to the 60-Day Notice requirement. and 4. plaintiff does not anticipate filing any new actions in this Court until late December 2002. a PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT 7 . Plaintiff may bring actions against additional parties under the Business & Professions Code for similar violations once his investigation has been completed. All documents may be served on the parties by fax and/or email (with proof of service and confirmation required). plaintiff recommends that the following procedures be considered as orders by the court: 1.defendant) and before the specific identity and scope of trial issues will be determined. ADDITIONAL PARTIES TO BE NAMED Plaintiff is continuing to investigate other possible violators of Proposition 65 and Business & Professions Code §17500 as they pertain to lead exposure from the reasonably foreseeable use of light bulbs. 3. Any phasing at this point is premature. defendants should designate lead counsel for each case to accept service on behalf of the various other defendants and to streamline the process of service and notification. 2. STREAMLINING SUGGESTIONS In an effort to keep the litigation on an efficient path.

referee be appointed to oversee discovery disputes. 2002 Respectfully submitted. must write a short letter to the court setting forth the dispute to determine if an informal resolution can be reached prior to the filing of a formal motion. Sheffer Attorneys for Plaintiff MICHAEL DIPIRRO PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT 8 . prior to filing any motions to compel and after fulfilling their meet and confer obligations. or a requirement be imposed that all parties. SHEFFER & CHANLER LLP _________________________________ Gregory M. DATED: November ___.

CA 94605. declare under penalty of perjury: I am a citizen of the United States.PROOF OF SERVICE I. and not a party to the within action. over the age of 18 years. On November ___. I served the following documents: PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT on the following party or parties by placing a true and correct copy thereof in a sealed envelope. California. Suite 200. _________________________________ Tiffany Thompson PROOF OF SERVICE . 2002. at Oakland. the undersigned. 2002. my business address is 4400 Keller Avenue. Oakland. and depositing with the United States Postal Service to be delivered by regular mail to the addressee(s) herein below described: SEE ATTACHED SERVICE LIST Executed on November ___.

Sign up to vote on this title
UsefulNot useful