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, ) No. 02-046321

)
Plaintiff, ) PLAINTIFF’S COMPLEX CASE
) MANAGEMENT STATEMENT
v. )
) Date: November 21, 2002
ACE HARDWARE CORPORATION; ADAMS ) Dept: 22
APPLE DISTRIBUTING, L.P.; ANGELO ) Time: 9:30 a.m.
BROTHERS COMPANY; BARNETT, INC.; ) Judge: Hon. Ronald M. Sabraw
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. )
 Pursuant to the October 3, 2002, Case Management Order of this Court,

plaintiff Michael DiPirro ("DiPirro") hereby submits this Supplemental Complex

Case Management Conference Statement.

A. ITEMS THAT THE PARTIES HAVE AGREED TO

As ordered, the parties have met and conferred over the past few weeks

regarding proposed stipulations to revise the pleadings and other case

management issues.

Plaintiff and Defendants first met and conferred on the appropriate form

of Order from the October 2, 2002, Case Management Conference. A proposed

Order and comments were sent to the Court by Mr. J. Meeder. Plaintiff does not

believe this Court has yet signed this Order and plaintiff has not been served

with the Order.

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. A stipulation was reached and will be presented to this Court

for signature and Order upon Stipulation.

Plaintiff proposed stipulations to the defendants in the Ace and Angelo

Brothers case to strike certain irrelevant, improper or other allegations from

each Complaint. The parties met and conferred on the proposed stipulations

but no stipulation was entered in either case to strike any allegations.

B. PENDING MOTIONS

On or before October 31, 2002, the following defendants filed the

following fifteen motions:

Ace
Motion to Strike Portions of Plaintiff’s Complaint

PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT

2
 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, plaintiff submits that defendants’ motion is

untimely under CCP § 435 and improper under CCP § 436. Plaintiff further

submits the motion on the grounds that it is sweeping, overbroad, and

insufficiently specific by generally requesting the striking of unspecified

allegations that are not only true and proper, 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 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
not, as defendants insistently (and equally incorrectly) argue, defendants’ sales

of the products outside of this State. By reaching only advertising activity

occurring within this State, the Legislature, and plaintiff, 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. Finally, plaintiff further

objects to the legally and procedurally unsupported request by defendants to

have him amend the Complaint to clarify the remaining allegations as, after this

Courts’ ruling on defendants’ Demurrers, there can be no doubt as to plaintiff’s

remaining theory of liability and asserted basis for recovery.

As to the Motions for Judgment on the Pleadings, plaintiff submits that

plaintiff’s Third Cause of Action sufficiently alleges that defendants engaged in

a marketing scheme to mislead consumers, that all of defendants’ marketing

statements conformed to that scheme, and that consumers are likely to be

deceived by such scheme. The law simply does not require identification of the

specific “statements” or representations of that marketing scheme, does not

require allegations of actual reliance upon that scheme and does not require

allegations of actual injury from that scheme. Plaintiff’s allegations are simple,

straightforward, 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, a

toxin, on the bulbs and fails to include a clear and reasonable warning about

that toxin. Plaintiff further opposes defendants’ Motion on the grounds that it

improperly requests this Court to test the accuracy of the allegations

prematurely. Assuming all of the allegations are true, 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
under Business & Professions (hereafter "B&P”) Code §§ 17200 et seq. and

17500 et seq.

As to the Motions for Order Denying Jury Trial, plaintiff submits that

defendants attempt to have its motion to deny a jury trial adjudicated under

CCP §§ 187 and 1003. These provisions simply do not authorize the defendant

to bring this motion. Accordingly, the Court should summarily dismiss

defendants’ motion. Sears could have brought a “motion to strike” plaintiff’s

jury demand in a timely manner earlier in the litigation, but decided not to do

so. Moreover, Sears can have this issue adjudicated at a later point in this

proceeding if, for example, the Court orders the parties to brief the issue. In its

moving papers, defendants do not cite any case interpreting CCP § 187 to

support its asserted procedural basis for bringing this motion at this time. Even

if the case law allows a party, under certain circumstances, to bring [what

amounts to] an untimely motion to strike, defendants have not shown any good

cause to allow its motion to be heard at this time. 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), plaintiff does not wish to have the issue

decided simultaneously with the slew of other motions brought by the light bulb

defendants.

Accordingly, plaintiff requests that the Court decline to adjudicate this

motion at the present time.

Besides that which is described above, a Motion To Approve the

settlement with defendants Adams Apple Distributing, LP and Urban Outfitters,

Inc. was heard and granted on October 4, 2002. A Motion to Approve the

settlement with defendant Bulbrite Industries is scheduled to be filed in the

PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT
5
next ten days. Plaintiff dismissed defendant Sunbeam Products, Inc. on

November 13, 2002.

C. STATUS OF CERTAIN SETTLEMENT NEGOTIATIONS

Plaintiff has reached settlements with two defendants in the Ace case:

Adams Apple and Urban Outfitters. In addition to the settlement with Adams

Apple and Urban Outfitters, plaintiff has settled with defendant Bulbrite

Industries. Plaintiff has reached an agreement to resolve the claims against

defendant Sunbeam Products, Inc. in the Ace case. Plaintiff is in negotiation

with certain other defendants though not necessarily close to resolving all

issues predicated to settlement.

D. POTENTIAL FOR CONSOLIDATION

The Court took under submission the Case Management issues pertaining

to Feit, Sears, Osram, and Satco.

Plaintiff opposes any consolidation of the individual cases of Feit, Sears,

Osram, and Satco. Plaintiff requests a trial date for each and believes that,

perhaps one should trail the others. The parties have agreed to a stay of Sears

(as a retailer) and does not request a trial date for the Sears case.

E. THE POSSIBILITY OF UTILIZING A PHASED APPROACH IN THE

CASES

Prior to the recent rulings of this Court, plaintiff was conceptually

amenable to phasing the case if and only if his specific proposal was adopted

by this Court. Now that the Proposition 65 trials for the light bulb cases have

been narrowed considerably to one, two, or three cases involving a singular

defendant in each case, plaintiff will not agree to any phased approach.

Further, as stated, 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
defendant) and before the specific identity and scope of trial issues will be

determined. Only after completion of discovery and determination of such

dispositive motions will a discussion regarding phasing of the remaining issues

be productive. Any phasing at this point is premature.

F. 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. Due to the 60-Day Notice

requirement, plaintiff does not anticipate filing any new actions in this Court

until late December 2002. Plaintiff may bring actions against additional parties

under the Business & Professions Code for similar violations once his

investigation has been completed.

G. STREAMLINING SUGGESTIONS

In an effort to keep the litigation on an efficient path, plaintiff

recommends that the following procedures be considered as orders by the

court:

1. All documents may be served on the parties by fax and/or e-

mail (with proof of service and confirmation required);

2. As to issues generally affecting the remaining defendants,

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;

3. 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; and

4. For those cases that are not sent to a trial department, a

PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT
7
 referee be appointed to oversee discovery disputes; or a

requirement be imposed that all parties, prior to filing any motions

to compel and after fulfilling their meet and confer obligations,

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.

DATED: November ___, 2002 Respectfully submitted,

SHEFFER & CHANLER LLP

_________________________________
Gregory M. Sheffer
Attorneys for Plaintiff
MICHAEL DIPIRRO

PLAINTIFF’S COMPLEX CASE MANAGEMENT STATEMENT

8
 PROOF OF SERVICE

I, the undersigned, declare under penalty of perjury:

I am a citizen of the United States, over the age of 18 years, and not a
party to the within action; my business address is 4400 Keller Avenue, Suite
200, Oakland, CA 94605.

On November ___, 2002, 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, 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 ___, 2002, at Oakland, California.

_________________________________
Tiffany Thompson

PROOF OF SERVICE