EXHIBIT 2
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SANTA CLARA
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STEVEN SIMON, MICHAEL KALLOK AND
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ALEXEY TERSKIKH, on Behalf of Himself and )
All Others Similarly Situated,
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Plaintiffs,
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vs.
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ERIC STANG, LEN DEBENEDICTIS, HANK
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GAUTHIER, and RELIANT TECHNOLOGIES, )
INC.,
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Defendants.
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CASE NO.: 1-09-CV-159829
[PROPOSED] ORDER EXTENDING
STAY AND CONTINUING ORDER
TO SHOW CAUSE WHY ACTION
SHOULD NOT BE DISMISSED
Judge: Hon. James P. Kleinberg
Dept: 1C
Date Action Filed: December 21, 2009
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DEFENDANTS’ MOTION TO DISMISS OR STAY
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Plaintiffs’ position is without merit. Judge Huber was not required to provide a rationale
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for his order. The “until further Order” language in Judge Huber’s November 3, 2010 order
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means that the action will be stayed until a further order (if any) lifts the stay. It was not a
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signal that a more detailed rationale was forthcoming such that Plaintiffs could simply do
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nothing until it arrived. The court’s position was clear; in granting the stay, it necessarily
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rejected Plaintiffs’ arguments – the same arguments raised again in response to the OSC.
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Plaintiffs had alternatives in response to the November, 2010 Order: they could have moved for
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reconsideration or filed a petition for writ of mandate with the Court of Appeal. They did
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neither. Moreover, Plaintiffs should have filed in Delaware. Plaintiffs argue that Judge Huber
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never ordered them to file in Delaware. Of course, it is inappropriate for this court to order a
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party to file a lawsuit. It is self-evident the stay meant that Plaintiffs were without a forum here
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and could only pursue the subject matter of this action in Delaware.
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A trial court has limited, inherent discretionary power to dismiss claims with prejudice.
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(See Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915). “[T]his power has in the past been confined
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to two types of situations: (1) the plaintiff has failed to prosecute diligently [citation]; or (2) the
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complaint has been shown to be 'fictitious or sham' such that the plaintiff has no valid cause of
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action [citation].”).
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Although one could argue that Plaintiffs in this action have failed to prosecute a
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Delaware action diligently, it cannot be said that Plaintiffs have failed to prosecute this action
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diligently. A counterargument would be that diligence in Delaware is essential for diligent
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prosecution of this stayed action, and Plaintiffs’ failure to do anything in Delaware since
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November, 2010 constitutes a lack of diligence here.
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Nevertheless, Lyons points out that the discretion to dismiss for lack of prosecution has
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been recodified at Code of Civil Procedure section 583.410, which permits the court to dismiss an
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action for lack of prosecution provided that one of several enumerated conditions has occurred:
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“(1) [service] is not made within two years after the action is commenced . . . (2) [the] action is not
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brought to trial within . . . [three] years after [it] is commenced . . . [or] (3) [a] new trial is granted
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and the action is not again brought to trial . . . within . . . two years . . . .” Code Civ. Proc., §
ORDER EXTENDING STAY AND CONTINUING
ORDER TO SHOW CAUSE WHY ACTION SHOULD
NOT BE DISMISSED
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583.420. “Thus, a minimum delay of two years is required before a trial court can exercise its
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discretionary dismissal powers. [Citations.]” (Lyons, supra, 42 Cal.3d at pp. 915-916.) And even
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in that circumstance there is a strong policy favoring trial on the merits. (Id. at p. 916).
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Here, this action was filed on December 21, 2009; two years have not yet elapsed, and
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even then, there is no purported issue of lack of service for two years. Given the express
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statutory limits on the court's dismissal power, the action should not be dismissed now, but the
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stay should remain in place.
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For these reasons this action remains stayed, and the Order to Show Cause why the action
should not be dismissed is continued to December 23, 2011 at 9:00 A.M.
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Dated:
Judge of the Superior Court
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ORDER EXTENDING STAY AND CONTINUING
ORDER TO SHOW CAUSE WHY ACTION SHOULD
NOT BE DISMISSED
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Respectfully submitted by:
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Ignacio E. Salceda
Gregory L. Watts
Katherine L. Henderson
Bryson Santaguida
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: (650) 493-9300
Facsimile: (650) 565-5100
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Attorneys for Defendants
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ORDER EXTENDING STAY AND CONTINUING
ORDER TO SHOW CAUSE WHY ACTION SHOULD
NOT BE DISMISSED
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