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E-FILED
Nena W. Wong (Bar No. 162570)
LAW OFFICES OF NENA W. WONG
6080 Center Drive, Suite 600
Los Angeles, California 90045
Telephone:
310-704-6603
Facsimile:
310-689-2339
May 2, 2013 3:03 PM
David H. Yamasaki
Chief Executive Officer/Clerk
Superior Court of CA, County of Santa Clara
Case #1-09-CV-143298 Filing #G-53530
By R. Nelson, Deputy
Attorneys for Plaintiff/Cross-Defendant
PHOEBE MICRO, INC., a California corporation
and Cross-Complainants/Cross-Defendants PETER LUI and
RUBY LUI
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SANTA CLARA
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Coordination Proceedings Special Title (Rule 3.550) Judicial Council Coordinated Proceeding
FRY’S ELECTRONICS PURCHASING CASES
Case No.: JCCP 4589
Included Actions:
NOTICE OF MOTION OF PETER LUI,
RUBY LUI AND PHOEBE MICRO,
INC. TO: (1) BIFURCATE TRIAL, (2)
EXTEND DISCOVERY, AND (3)
CONTINUE TRIAL ON BIFURCATED
CLAIMS
Fry’s Electronics, Inc. v. EliteGroup Computer
Systems, Inc.
Superior Court of California
County of Santa Clara
Case No. 1-09-CV-143298
Lead Data International, Inc. v. Fry’s Electronics,
Inc.
Superior Court of California
County of Santa Clara
Case No. 1-09-CV-133292
Phoebe Micro Inc. v. Fry’s Electronics, Inc.
Superior Court of California
County of Santa Clara
Case No. 1-09-CV-137828
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ProMedia Technologies, Inc. v. Fry’s Electronics,
Inc.
Superior Court of California
County of San Diego
Case No. 37-2009-00085407-CU-BC-CTL
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PHOEBE MICRO, INC., a California corporation,
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Plaintiff,
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[Filed Concurrently With:
1. Memorandum of Points and
Authorities of Peter Lui, Ruby Lui and
Phoebe Micro, Inc. in Support of
Motion to: (1) Bifurcate Trial, (2)
Extend Discovery, and (3) Continue
Trial on Bifurcated Claims; and
2. Declaration of Nena W. Wong in
Support of Motion of Peter Lui, Ruby
Lui and Phoebe Micro, Inc. to: (1)
Bifurcate Trial, (2) Extend Discovery,
and (3) Continue Trial on Bifurcated
Claims; and
3. Request for Judicial Notice in Support
of Motion of Peter Lui, Ruby Lui and
Phoebe Micro, Inc. to: (1) Bifurcate
Trial, (2) Extend Discovery, and (3)
Continue Trial on Bifurcated Claims]
[Also Filed Concurrently with: (1) Motion
for Sanctions, and (2) Motion for Review
of April 18, 2013 Discovery Referee Order]
v.
Date:
May 24, 2013
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PETER LUI, RUBY LUI AND PHOEBE MICRO, INC, MOTION TO BIFURCATE TRIAL, EXTEND
DISCOVERY AND CONTINUE TRIAL ON BIFURCATED CLAIMS
FRY’S ELECTRONIC PURCHASING CASES (JCCP 4589)
E-FILED: May 2, 2013 3:03 PM, Superior Court of CA, County of Santa Clara, Case #1-09-CV-143298 Filing #G-53530
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FRY'S ELECTRONICS, INC., a California
corporation; PC INTERNATIONAL, LLC, a
California limited liability company; AUSAF
UMAR SIDDIQUI a/k/a OMAR SIDDIQUI; JOHN
FRY, RANDY FRY, DAVID FRY, KATHY
KOLDER, and DOES 5 through 100, inclusive,
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Time:
Dept:
Judge:
9:00 a.m.
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Hon. James P. Kleinberg
Complaint Filed: March 20, 2009
Trial Date: September 30, 2013
Defendants.
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that on May 24, 2013, at 9:00 a.m., or as soon thereafter as this
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matter may be heard, before the Honorable James P. Kleinberg in Department 1 of the Superior
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Court of California for the County of Santa Clara, located at 191 North First Street, San Jose,
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California 95113, Cross-Complainants/Cross-Defendants PETER LUI and RUBY LUI
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(collectively, the “Luis”), and Plaintiff/Cross-Defendant PHOEBE MICRO, INC. (“Phoebe”)
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will and do hereby move this Court for an order:
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Bifurcating trial on: (a) the Luis’ Amended Cross-Complaint against Fry’s
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Electronics, Inc. (“Fry’s”) and the Fry’s Founders (defined to include Cross-Defendants John
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Fry, Randy Fry, David Fry and Kathy Kolder); (b) Phoebe’s Third Amended Complaint against
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Fry’s; and (c) Fry’s Third Amended Cross-Complaint against the Luis and Phoebe (collectively,
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the “Bifurcated Claims”), from the other complaints in the matters consolidated and coordinated
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under Fry’s Electronics Purchasing Cases, Judicial Council Coordinated Proceeding No. 4589.
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In the alternative, the Luis and Phoebe seek bifurcation and extension of discovery, at a
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minimum, of the Luis’ Amended Cross-Complaint against Fry’s and the Fry’s Founders, or such
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other bifurcation of claims as the Court deems appropriate;
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Extending discovery for six months from August 2, 2013 to February 2, 2013 to
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allow the Luis time to conduct discovery on their Amended Cross-Complaint following the
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lifting of stay on their discovery; and
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to April 2014.
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/ / /
Continuing trial on the Bifurcated Claims for six months from September 30, 2013
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PETER LUI, RUBY LUI AND PHOEBE MICRO, INC. MOTION TO BIFURCATE TRIAL, EXTEND
DISCOVERY AND CONTINUE TRIAL ON BIFURCATED CLAIMS
FRY’S ELECTRONIC PURCHASING CASES (JCCP 4589)
E-FILED: May 2, 2013 3:03 PM, Superior Court of CA, County of Santa Clara, Case #1-09-CV-143298 Filing #G-53530
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These Motions are made pursuant to the following legal authority:
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1.
The Motion to Bifurcate Trial is made pursuant to Code of Civil Procedure section
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1048 on the grounds that bifurcating the Luis’ and Phoebe’s claims is necessary to avoid
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prejudice, to preserve the Luis’ and Phoebe’s due process rights and to promote expedition and
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efficiency in the litigation. Fry’s had waited three years into this consolidated litigation before
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deciding to sue the Luis, at that time just five months prior to trial.. After being sued, the Luis
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sought and received leave to file a Cross-Complaint and the trial date was continued to
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September 30, 2013. (Prior to the initial May 3, 2013 demurrer hearing on the Luis’ Cross-
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Complaint, the Luis filed an Amended Cross-Complaint in April 2013 to incorporate new
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allegations from key depositions held in March 2013.) Since the Luis were sued, however, Fry’s
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has objected to every single individual request in all sets of discovery propounded by the Luis
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and, by misleading the Discovery Referee, improperly obtained a stay on discovery prohibiting
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the Luis from conducting discovery to pursue their now Amended Cross-Complaint until the May
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24, 2013 hearing on the demurrer their Amended Cross-Complaint. After this stay is lifted, the
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Luis would only have two months’ time to conduct discovery prior to the August 2, 2013
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Discovery cut-off date, resulting in a gross violation of the Luis’ due process rights. Bifurcating
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the trial on the Luis/Phoebe claims, which differ from the other complaints in this coordinated
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action, would avoid injustice, preserve due process rights and promote the expedition and
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efficiency of litigation by allowing the complaints of other parties in the coordinated action to
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proceed and not suffer from the delay caused by Fry’s suing the Luis so late in the litigation and
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then prohibiting the Luis from conducting discovery until the eve of trial.
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2.
The Motion to Extend Discovery is made pursuant to Code of Civil Procedure
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Section 2024.050 on the grounds that Fry’s and the Fry’s Founders have abused the discovery
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process to obtain a stay of discovery on the Luis’ Amended Cross-Complaint until a hearing on
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their demurrer to the Luis’ Amended Cross-Complaint on May 24, 2013. If the demurrer is
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overruled, the Luis would have only about two (2) months to conduct discovery prior to the
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August 2, 2013 discovery cut-off date;
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/ / /
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PETER LUI, RUBY LUI AND PHOEBE MICRO, INC. MOTION TO BIFURCATE TRIAL, EXTEND
DISCOVERY AND CONTINUE TRIAL ON BIFURCATED CLAIMS
FRY’S ELECTRONIC PURCHASING CASES (JCCP 4589)
E-FILED: May 2, 2013 3:03 PM, Superior Court of CA, County of Santa Clara, Case #1-09-CV-143298 Filing #G-53530
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3.
The Motion to Continue Trial is made pursuant to California Rules of Court Rule
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3.1332(a), which allows the Court to continue trial where, as here, the delay sought is only six
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months and is sought to allow the recently-sued Luis the ability to conduct discovery and prepare
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for trial once the stay on their ability to conduct discovery is lifted. Continuing the trial is also
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necessary to avoid prejudice to the Luis as under the current schedule, they would only have two
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months time to conduct any discovery on their Amended Cross-Complaint once the discovery
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stay is lifted.
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This Motion is based upon this Notice of Motion and Motion, the Memorandum of Points
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and Authorities, the Request for Judicial Notice, the Declaration of Nena W. Wong, all papers,
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records and documents on file in this case, and such oral arguments as the Court may permit at
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the time of hearing.
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DATED: May 2, 2013
LAW OFFICES OF NENA W. WONG
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By:
Nena W. Wong
Attorneys for Plaintiff/Cross-Defendant
PHOEBE MICRO, INC.,
a California corporation, and CrossComplainants/Cross-Defendants PETER
LUI and RUBY LUI
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PETER LUI, RUBY LUI AND PHOEBE MICRO, INC. MOTION TO BIFURCATE TRIAL, EXTEND
DISCOVERY AND CONTINUE TRIAL ON BIFURCATED CLAIMS
FRY’S ELECTRONIC PURCHASING CASES (JCCP 4589)