Ai-Daiwa, Ltd. v. Apparent, Inc. et al

Filing 75

STIPULATION AND ORDER re 74 Stipulation Rescheduling 59 MOTION to Dismiss CORRECTION OF DOCKET Nos. 56 and 57 . Motion Hearing set for 8/7/2014 10:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Vince Chhabria. Case Management Conference set for 8/7/2014 10:00 AM in Courtroom 10, 19th Floor, San Francisco. Signed by Judge Vince Chhabria on 7/17/2014. (knm, COURT STAFF) (Filed on 7/17/2014)

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[Counsel listed on page 2]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AI-DAIWA, LTD.,

Case No.: CV13-4156 EDL

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Plaintiff,
JOINT STIPULATION AND REQUEST
TO CONTINUE DATE OF CASE
MANAGEMENT CONFERENCE AND
MOTION TO DISMISS HEARING;
DECLARATION OF JAMES PARTON
III; AND (PROPOSED) ORDER

v.
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A Professional Corporation

PARTON | SELL | RHOADES

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APPARENT, INC., a Delaware Corporation;
APPARENT ENERGY, INC., a Delaware
Corporation; APPARENT SOLAR, INC., a
Delaware Corporation; APPARENT SOLAR
INVESTMENTS, LLC, a Hawaii limited
liability company; XSLENT, LLC, a Delaware
limited liability company; XSLENT ENERGY
TECHNOLOGIES, LLC, a Delaware limited
liability company; and DOES 1-10 inclusive,

(LOCAL RULE 6-2, 7-12)
Case Filed:
Trial Date:

9/9/13
N/A

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Defendants
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AND RELATED CROSS-ACTION

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CV13-4156 EDL

JOINT STIPULATION AND REQUEST TO CONT INITIAL CASE MANAGEMENT CONFERENCE; AND
(PROPOSED) ORDER

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JAMES PARTON, ESQ. (SBN 77698)
PARTON | SELL | RHOADES
A Professional Corporation
750 Lindaro, Suite 140
San Rafael, CA 94901
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]

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JACQUELINE DESOUZA, ESQ. (SBN 133686)
DESOUZA LAW OFFICES, PC
1615 Hopkins Street
Berkeley, CA 94707
T:
[phone]
F:
[phone]
Email: [e-mail]

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A Professional Corporation

PARTON | SELL | RHOADES

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Attorneys for Defendants, APPARENT, INC.;
APPARENT ENERGY, INC.; APPARENT
SOLAR, INC., XSLENT ENERGY
TECHNOLOGIES, LLC; and APPARENT SOLAR
INVESTMENTS (II), LLC (erroneously sued
herein as Apparent Solar Investments, LLC) and
Counter Claimants, APPARENT, INC. and
APPARENT ENERGY, INC
CHI-HUNG A. CHAN (SBN 104289)
LAEL D. ANDARA (SBN 215416)
MICHAEL D. KANACH (271215)
ROPERS, MAJESKI, KOHN & BENTLEY
1001 Marshall Street, Suite 500
Redwood City, CA 94063-2052
T:
[phone]
F:
[phone]
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
AI-DAIWA, LTD.

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CV13-4156 EDL

JOINT STIPULATION AND REQUEST TO CONT INITIAL CASE MANAGEMENT CONFERENCE; AND
(PROPOSED) ORDER

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TO THE COURT:

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Pursuant to Local Rules 6-1, 6-2, and 7-12, Plaintiff AI-Daiwa, Ltd. (AI-Daiwa) and

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Defendants Apparent, Inc., Apparent Energy Inc., Apparent Solar Inc., Xslent Energy Technologies,

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LLC; Apparent Solar Investments (Ii), LLC erroneously sued herein as Apparent Solar Investments,

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LLC (collectively “Defendants”) and Apparent Inc. and Apparent Energy Inc. (collectively

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Counterclaimants) (all collectively, the “Parties”), by and through their undersigned counsel, submit

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this Stipulated Joint Request to Continue the Case Management Conference and hearing on Motion

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to Dismiss Defendants’ Amended Counterclaims for one week, from July 31, 2014 to August 7,

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2014, in order to accommodate the unavailability of new defense counsel that associated into this

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A Professional Corporation

PARTON | SELL | RHOADES

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case on July 14, 2014.
WHEREAS, the hearing on Plaintiff’s Motion to Dismiss Defendants’ Amended

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Counterclaims, and the Case Management Conference, is presently scheduled for July 31, 2014 at

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10:00 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Vince Chhabria;

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WHEREAS, on July 14, 2014, James Parton III of Parton | Sell | Rhoades, PC associated

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into this case as counsel for Defendants, APPARENT, INC.; APPARENT ENERGY, INC.;

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APPARENT SOLAR, INC., XSLENT ENERGY TECHNOLOGIES, LLC; and APPARENT

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SOLAR INVESTMENTS (II), LLC (erroneously sued herein as Apparent Solar Investments, LLC)

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and Counter Claimants, APPARENT, INC. and APPARENT ENERGY, INC. (Docket No. 71);

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WHEREAS, Mr. Parton is unavailable during the week of July 31, 2014 due to a pre-

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planned vacation that preceded his involvement in this case and will be returning from vacation on

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August 4, 2014;

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WHEREAS, Mr. Parton, and Defendants and Counterclaimants, wish Mr. Parton to attend

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the upcoming hearing on Plaintiff’s Motion to Dismiss Defendants’ Amended Counterclaims, and

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the Case Management Conference;

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WHEREAS, plaintiff’s counsel stipulates to Defendants’ request for a one week continuance

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of the hearing on Plaintiff’s Motion to Dismiss Defendants’ Amended Counterclaims, and the Case

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Management Conference, from July 31, 2014 to August 7, 2014, in order to accommodate Mr.

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Parton’s unavailability on July 31 due to a pre-planned vacation;
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CV13-4156 EDL

JOINT STIPULATION AND REQUEST TO CONT INITIAL CASE MANAGEMENT CONFERENCE; AND
(PROPOSED) ORDER

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WHEREAS, Civil L.R. 6-1 and 6-2 permits the parties to file a stipulation, conforming to

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Civil L.R. 7-12, requesting an order changing time that would affect the date of an event or deadline

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already fixed by Court order, or that would accelerate or extend time frames set in the Local Rules

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or in the Federal Rules. The stipulated request must be accompanied by a declaration that: (1) Sets

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forth with particularity, the reasons for the requested enlargement or shortening of time; (2)

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Discloses all previous time modifications in the case, whether by stipulation or Court order; and (3)

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Describes the effect the requested time modification would have on the schedule for the case.

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N.D.C.A. Local Rule 6-2; and

and presents good cause for a one-week continuance of Plaintiff’s Motion to Dismiss Defendants’

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A Professional Corporation

WHEREAS, the Declaration of James Parton III fulfills the requirements of Civil L.R. 6-2

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PARTON | SELL | RHOADES

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Amended Counterclaims, which is already fully briefed, and the Case Management Conference,

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from July 31, 2014 to August 7, 2014,

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NOW THEREFORE, THE PARTIES STIPULATE AND JOINTLY REQUEST AN
ORDER STATING:
1.

The case management conference (Docket No. 60 & 68) set for July 31, 2014 at

10:00 AM in Courtroom 10, be rescheduled to August 7, 2014 at 10:00 AM in Courtroom 10; and
2.

Plaintiff’s Motion to Dismiss Defendants’ Amended Counterclaims (Docket No. 59,

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60, 68), set for hearing on July 31, 2014 at 10:00 AM in Courtroom 10, be rescheduled to August 7,

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2014 at 10:00 AM in Courtroom 10.

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IT IS SO STIPULATED.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: ______7/15/2014_________

__/Lael D. Andara/_______________________
Attorneys for AI-Daiwa

DATED: ______7/15/2014_________

__/Jacqueline deSouza/____________________
Attorneys for Defendants and Counterclaimants

DATED: ______7/15/2014_________

__/James Parton III/____________________
Attorneys for Defendants and Counterclaimants

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CV13-4156 EDL

JOINT STIPULATION AND REQUEST TO CONT INITIAL CASE MANAGEMENT CONFERENCE; AND
(PROPOSED) ORDER

DECLARATION OF JAMES PARTON III

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I, James Parton III, declare:

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1.

I am an attorney at law licensed to practice before the Courts of this State and am a

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shareholder of Parton | Sell | Rhoades, PC, which associated in on July 14, 2014 as attorneys of

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record for Defendants Apparent Inc., Apparent Energy Inc., Apparent Solar Inc., Xslent Energy

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Technologies, LLC, Apparent Solar Investments (II), LLC erroneously sued as “Apparent Solar

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Investments, LLC” (collectively for purposes of this declaration, “Apparent”).

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I make this declaration based on my personal knowledge and if called as a witness

could and would so testify.
3.

The reasons for the stipulated requested enlargement of time are the following,

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A Professional Corporation

PARTON | SELL | RHOADES

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2.

pursuant to Local Rule 6-2: my firm associated into this case as defense counsel on July 14, 2014.

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Since May 2014, I have had a pre-paid vacation planned to the State of Washington (specifically,

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Mt. Saint Helens, Orcas Island, Mt. Rainier, and the Oregon coast) beginning July 19 and ending

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August 3. I was first contacted regarding this matter on July 7.

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As trial counsel in this matter, I believe it is important that I personally be present at

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the upcoming case management conference and hearing on Plaintiff’s Motion To Dismiss

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Defendants’ Amended Counterclaims, presently set for July 31, 2014at 10:00 AM in Courtroom 10

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of the above-captioned Court. My clients also want me to attend these hearings.

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5.

On July 14, 2014, after filing the notice of association of Parton | Sell | Rhoades, PC

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as defense counsel, I contacted counsel for plaintiff and explained that, due to a preplanned

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vacation, I would be out of town during the week of July 31, 2014 but would be returning on

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August 4, 2014. Therefore, I asked plaintiff’s counsel to stipulate to a brief, one week continuance,

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of the July 31 case management conference and motion to dismiss hearing, so that I could attend

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both appearances. Plaintiff’s counsel extended me the requested professional courtesy of stipulating

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to the present request to a one-week continuance of the case management conference and motion to

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dismiss hearing to August 7, 2014.

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6.

All previous time modifications in the case, whether by stipulation or Court order,

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are the following:
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CV13-4156 EDL

JOINT STIPULATION AND REQUEST TO CONT INITIAL CASE MANAGEMENT CONFERENCE; AND
(PROPOSED) ORDER

a. On September 9, 2013, the Court set an initial case management conference was

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set for December 10, 2013 (Docket No. 2);

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b. On October 15, 2013, this case was reassigned to the Hon. Yvonne Gonzalez

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Rogers for all further proceedings. (Docket No. 11);

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c. On November 19, 2013, the Court rescheduled the initial case management

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conference to March 31, 2014. (Docket No. 25);

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d. On March 18, 2013, the Court vacated the March 31, 2014 case management

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conference and set a status conference for April 7, 2014. (Docket No.36);
e.

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August 11, 2014. (Docket No. 39);

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f. On April 7, 2014, the Court held a status conference and set another status

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A Professional Corporation

PARTON | SELL | RHOADES

On April 1, 2014, the Court set an initial case management conference for

conference for April 11, 2014. (Docket No. 41);

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g. On April 10, 2014, the Court vacated the April 11, 2014 status conference.

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(Docket No. 45);

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h.

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On April 17, 2014, this case was reassigned to Hon. Honorable Vince Chhabria,

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for all further proceedings and the parties were ordered to file a case management

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statement by May 1, 2014. (Docket No. 45);
i. On June 4, 2014, Plaintiff filed a Motion to Dismiss Defendants’ Amended

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Counterclaims, set for hearing on July 10, 2014. (Docket No. 59);

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j. On June 11, 2014, the Court reset the time and location of the July 10, 2014

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hearing on Plaintiff’s Motion to Dismiss Defendants’ Amended Counterclaims,

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and set a Case Management Conference the same day, time, and location.

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(Docket No. 60);
k. On July 3, 2014, the Court rescheduled the hearing on Plaintiff’s Motion to

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Dismiss Defendants’ Amended Counterclaims, and the Case Management

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Conference, from July 10, 2014 to July 31, 2014. (Docket No. 68)

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///

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///
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CV13-4156 EDL

JOINT STIPULATION AND REQUEST TO CONT INITIAL CASE MANAGEMENT CONFERENCE; AND
(PROPOSED) ORDER

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The effect of the time modification, requested by this stipulation, on the schedule for

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this case would be to delay for one week the hearing of Plaintiff’s Motion to Dismiss Defendants’

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Amended Counterclaims, and the Case Management Conference. I do not believe it would have any

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materially adverse effect on the schedule for this case because the motion to dismiss is already fully

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briefed and the initial notice setting the case management conference (Docket No. 60) suggests that

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the Court prefers to hold the case management conference at the same time as the motion to dismiss

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hearing.

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knowledge by the law of the United States and that this declaration was executed on July 15, 2014,
at San Rafael, CA.
__/James Parton III/____________________
JAMES PARTON, III, ESQ.

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PURSUANT TO THE ABOVE STIPULATION, IT IS SO ORDERED.
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The case management conference (Docket No. 60 & 68) set for July 31, 2014 at 10:00 AM
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in Courtroom 10, is rescheduled to August 7, 2014 at 10:00 AM in Courtroom 10; and Plaintiff’s
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Motion to Dismiss Defendants’ Amended Counterclaims (Docket No. 59, 60, 68), set for hearing on
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July 31, 2014 at 10:00 AM in Courtroom 10, is rescheduled to August 7, 2014 at 10:00 AM in
Courtroom 10.

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STIP AND ORDER CONTG CMC FINAL

United States District Judge

NO

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DERED
SO OR
Hon.
IT IS Vince Chhabria
inc
J u d ge V

ER

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br ia

A

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e Chha

FO

July 17, 2014
Dated: _______________

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UNIT
ED

A Professional Corporation

PARTON | SELL | RHOADES

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I swear under penalty of perjury that the following is true and correct to the best of my

N

F
D IS T IC T O
R

C

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CV13-4156 EDL

JOINT STIPULATION AND REQUEST TO CONT INITIAL CASE MANAGEMENT CONFERENCE; AND
(PROPOSED) ORDER

AI-DAIWA, LTD. V. APPARENT, INC.
USDC CASE NO.: CV13-4156 EDL

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STATE OF CALIFORNIA, COUNTY OF MARIN
I am over the age of 18 years, and not a party to this action. My business address is 750
Lindaro, Suite 140, San Rafael, CA 94901, which is located in Marin County, California.
On 7/15/14, I served the documents named below on the parties in this action as follows:
DOCUMENT(S) SERVED:

JOINT STIPULATION AND REQUEST TO
CONTINUE DATE OF CASE MANAGEMENT
CONFERENCE AND MOTION TO DISMISS
HEARING; DECLARATION OF JAMES
PARTON III; AND (PROPOSED) ORDER

SERVED UPON:

SEE ATTACHED LIST

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X

(By Mail) I verify that each such envelope, with postage thereon fully prepaid, has been or
will be placed in the United States mail at Marin, California. I am readily familiar with the
practice of Parton Sell Rhoades, for collection and processing of correspondence and/or
documents for mailing, said practice being that in the ordinary course of business, mail is
deposited in the United States Postal Service the same day as it is placed for collection. 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 date of deposit for mailing
in affidavit.
(By Personal Service) I verify that the above referenced document(s) have been or will be
personally served on
to the recipients attached to this document.
(By Overnight Delivery) I am readily familiar with the practice of Parton Sell Rhoades, for
collection and processing of correspondence for overnight delivery and know that the
document(s) described herein will be deposited in a box or other facility regularly
maintained by the delivery service chosen for overnight delivery.
(By Facsimile Where Indicated) The above-referenced document was transmitted by
facsimile transmission and the transmission was reported as complete and without error.
Pursuant to C.R.C. 2009(l), I caused the transmitting facsimile machine to issue properly a
transmission report, a copy of which is available upon request.
(By Electronic Mail) The above-referenced document was transmitted via electronic service
and transmission was reported as complete and without error. Pursuant to C.R.C. 2.260, I
verify that the documents have been electronically transmitted with my registered email
address provided by my employer, Parton Sell Rhoades, and was sent on
.
(By Electronic Filing with the U.S. District Court) I certify that on 7/15/14, I electronically
transmitted the attached document to the United States District Court and/or the U.S.
District Clerk’s Office using the ECF System for filing and transmittal of a Notice of
Electronic Filing to the ECF registrants/recipients registered with the United States District
Court according to Federal District Court Rules Requirements.
(FEDERAL) I declare that I am employed in the office of a member of the bar of this court,
at whose direction this service was made.

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Executed on 7/15/14 at San Rafael, California.
Juliet Kelly
By Juliet Kelly

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Ai-Daiwa, Ltd. v. Apparent, Inc.
USDC Case No.: CV13-4156 EDL
SERVICE LIST

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PLAINTIFFS
Chi-Hung A. Chan
Ropers, Majeski, Kohn & Bentley
1001 Marshall Street, Suite 500
Redwood City, CA 94063-2052
T:
[phone]
F:
[phone]
[e-mail]

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DEFENDANTS
Jacqueline Desouza, Esq.
Desouza Law Offices, PC
1615 Hopkins Street
Berkeley, CA 94707
T:
[phone]
F:
[phone]
[e-mail]

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Lynch, Gilardi
& Grummer
475 Sansome Street
Suite 1800
San Francisco, CA
94111
Ph [phone]
Fax [phone]

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PROOF OF SERVICE BY MAIL