1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 California Chamber of Commerce, No. 2:19-cv-02019-KJM-JDP 12 Plaintiff, ORDER 13 Vv. Rob Bonta in his official capacity as Attorney 15 General of the State of California, 16 Defendant. 17 and 18 | Council for Education and Research on Toxics, 19 Defendant-Intervenor 20 21 22 The Chemical Toxin Working Group, doing business as Healthy Living Foundation or 23 | “HLF,” applies ex parte for leave to intervene as a defendant and to file an appeal as a nonparty. 24 | ECF No. 128. It requests relief on an expedited basis. The ex parte application is denied. 25 In this case, the California Chamber of Commerce contends a California law commonly 26 | known as “Proposition 65” violates the First Amendment by requiring warnings about the dangers 27 | of acrylamide in food and drinks. In a previous order, the court granted the Chamber’s motion for 28 | apreliminary injunction barring new private enforcement actions, which are permitted by
1 California law. See Prev. Order, ECF No. 114. The California Attorney General, the only 2 defendant named in the Chamber’s complaint, did not appeal that order. But the Council for 3 Education and Research on Toxics or “CERT,” which intervened as a defendant early in this 4 litigation, did file an interlocutory appeal. See Not. of Appeal, ECF No. 119. CERT is a public 5 benefit corporation that commonly litigates private enforcement actions about acrylamide in food 6 and drinks. 7 After the court granted the Chamber’s motion for a preliminary injunction, and after 8 CERT appealed, HLF filed documents challenging the preliminary injunction and requesting 9 leave to file an appeal. Like CERT, HLF has litigated private enforcement actions about 10 acrylamide. Unlike CERT, however, HLF is not a party to this litigation. Nor did its filing, 11 which expressly describes itself as a motion,1 comply with the motion-related provisions of this 12 District’s local rules and this court’s standing orders. For example, the motion did not notice a 13 hearing date, and it did not include a certification that counsel had attempted to meet and confer 14 with the other parties. See E.D. Cal. L.R. 230; Standing Order at 3, ECF No. 3. The motion’s 15 title on the CM/ECF system also is incorrect. Rather than a “motion,” counsel filed the document 16 as a “Notice of Appeal.” ECF No. 122. The Clerk’s Office processed the motion as a notice of 17 appeal. ECF No. 123. As a result of these shortcomings, the court denied HLF’s motion without 18 prejudice to renewal, and the incorrectly titled notice of appeal was stricken. See ECF No. 125. 19 HLF did not renew its motion for about two more weeks. See Ex Parte App., ECF No. 20 128. When it did, in addition to requesting leave to file an appeal, HLF made clear it was also 21 moving for leave to intervene as a defendant. See id. But instead of filing and noticing a motion, 22 HLF applied for relief ex parte, asking the court to set an expedited briefing schedule and hearing. 23 The Attorney General and the Chamber both oppose the ex parte application. See Cal. Opp’n, 24 ECF No. 130; Chamber Opp’n, ECF No. 131. HLF requested leave to file a reply. See Reply, 25 ECF No. 132. That request is granted. The proposed reply is deemed filed.
1 The title of its first filing was “Notice of Motion and Motion . . . for Leave to File Appeal,” and the attached memorandum confirmed the filing was a request for permission from this court to appeal. See ECF No. 122; see also ECF No 122-1 (attaching a proposed notice of appeal). 1 The threshold question is whether the court should entertain HLF’s request for a decision 2 on an expedited schedule. This court’s standing order for civil cases requires a party requesting 3 such relief ex parte to include an affidavit with a “satisfactory explanation” of, among other 4 things, why its request “cannot be noticed on the court’s law and motion calendar as provided by 5 Local Rule 230.” Chief Judge Kimberly J. Mueller Standing Orders for Civil Cases.2 This 6 requirement implements the presumption that the time-tested schedules and safeguards imposed 7 by the Federal Rules of Civil Procedure are the fair and reliable way to resolve motions in civil 8 litigation. See, e.g., Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 491 (C.D. 9 Cal. 1995). This presumption, in turn, prevents ex parte applications from becoming a tool “for 10 parties who have failed to present requests when they should have.” In re Intermagnetics Am., 11 Inc., 101 B.R. 191, 193 (C.D. Cal. 1989). Ex parte applications “should not be used as a way to 12 ‘cut in line’ ahead of those litigants awaiting determination of their properly noticed and timely 13 filed motions.” Id. 14 Here, HLF explained its urgency by citing the deadlines imposed by Federal Rule of 15 Appellate Procedure 4 and by pointing out that opening briefs in the appeal it wishes to join were 16 due before this court’s next available civil law and motion hearing date. See Ex Parte App. at 1, 17 18–19. It also claims it did not know about this case until after the court imposed a preliminary 18 injunction. See id. at 2–3. There are three problems with this explanation. 19 The first problem is HLF’s failure to participate in this litigation in the year and a half it 20 has been pending. See Compl., ECF No. 1 (filed October 7, 2019). Soon after the Chamber filed 21 its original complaint, it served a notice of this action on Andre A. Khansari, who has often 22 represented HLF in private enforcement actions about acrylamide under Proposition 65, and who 23 has requested that “all communications” about HLF’s Proposition 65 notices be sent to him. See 24 Norris Decl.¶¶ 3–4, ECF No. 131-1. Mr. Khansari forwarded the notice to HLF’s Chief Officer, 25 who admits he received it at that time in what he describes as his “old mail box.” See Steinman 26 Decl. at 2, ECF No. 128-4. It is unclear from his declaration whether he had forgotten the notice
2 http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/5020/standing- orders/, last visited May 24, 2021. 1 or had not reviewed it. See id. A year later, the Chamber served an additional notice on 2 Katherine Van Meurs, another attorney representing HLF in private litigation about Proposition 3 65. See id. ¶ 7. Like Mr. Khansari, Ms. Van Meurs has requested that her office receive 4 communications about HLF’s Proposition 65 litigation. See id. ¶ 8. According to HLF’s Chief 5 Officer, Ms. Van Meurs did not forward the notice she received from the Chamber of Commerce. 6 Steinman Decl. at 2. The reason is unclear. HLF’s Chief Officer believes he should also have 7 received a notice of this litigation because he is HLF’s agent for service of process and because 8 Mr. Khansari and Ms. Van Meurs were not HLF’s counsel of record. See Steinman Decl. at 2. 9 But HLF is not a party to this action, so it had no counsel of record, and as summarized above, 10 Mr. Khansari and Ms. Van Meurs have in fact requested that communications about Proposition 11 65 notices be sent to them. In addition to these notices, the Chamber also cites articles about this 12 case in publications such as the National Law Review, Law360 and Reuters. See Norris Decl. 13 ¶¶ 24–40. HLF does not explain its ignorance of these articles. 14 Sometimes deadlines pass and delays accrue as a result of “excusable neglect,” and if so, 15 urgent relief may yet be available. See Mission Power, 883 F. Supp. at 492 (ex parte applications 16 are ordinarily denied unless “the moving party is without fault in creating the crisis that requires 17 ex parte relief” or “the crisis occurred as a result of excusable neglect”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 California Chamber of Commerce, No. 2:19-cv-02019-KJM-JDP 12 Plaintiff, ORDER 13 Vv. Rob Bonta in his official capacity as Attorney 15 General of the State of California, 16 Defendant. 17 and 18 | Council for Education and Research on Toxics, 19 Defendant-Intervenor 20 21 22 The Chemical Toxin Working Group, doing business as Healthy Living Foundation or 23 | “HLF,” applies ex parte for leave to intervene as a defendant and to file an appeal as a nonparty. 24 | ECF No. 128. It requests relief on an expedited basis. The ex parte application is denied. 25 In this case, the California Chamber of Commerce contends a California law commonly 26 | known as “Proposition 65” violates the First Amendment by requiring warnings about the dangers 27 | of acrylamide in food and drinks. In a previous order, the court granted the Chamber’s motion for 28 | apreliminary injunction barring new private enforcement actions, which are permitted by
1 California law. See Prev. Order, ECF No. 114. The California Attorney General, the only 2 defendant named in the Chamber’s complaint, did not appeal that order. But the Council for 3 Education and Research on Toxics or “CERT,” which intervened as a defendant early in this 4 litigation, did file an interlocutory appeal. See Not. of Appeal, ECF No. 119. CERT is a public 5 benefit corporation that commonly litigates private enforcement actions about acrylamide in food 6 and drinks. 7 After the court granted the Chamber’s motion for a preliminary injunction, and after 8 CERT appealed, HLF filed documents challenging the preliminary injunction and requesting 9 leave to file an appeal. Like CERT, HLF has litigated private enforcement actions about 10 acrylamide. Unlike CERT, however, HLF is not a party to this litigation. Nor did its filing, 11 which expressly describes itself as a motion,1 comply with the motion-related provisions of this 12 District’s local rules and this court’s standing orders. For example, the motion did not notice a 13 hearing date, and it did not include a certification that counsel had attempted to meet and confer 14 with the other parties. See E.D. Cal. L.R. 230; Standing Order at 3, ECF No. 3. The motion’s 15 title on the CM/ECF system also is incorrect. Rather than a “motion,” counsel filed the document 16 as a “Notice of Appeal.” ECF No. 122. The Clerk’s Office processed the motion as a notice of 17 appeal. ECF No. 123. As a result of these shortcomings, the court denied HLF’s motion without 18 prejudice to renewal, and the incorrectly titled notice of appeal was stricken. See ECF No. 125. 19 HLF did not renew its motion for about two more weeks. See Ex Parte App., ECF No. 20 128. When it did, in addition to requesting leave to file an appeal, HLF made clear it was also 21 moving for leave to intervene as a defendant. See id. But instead of filing and noticing a motion, 22 HLF applied for relief ex parte, asking the court to set an expedited briefing schedule and hearing. 23 The Attorney General and the Chamber both oppose the ex parte application. See Cal. Opp’n, 24 ECF No. 130; Chamber Opp’n, ECF No. 131. HLF requested leave to file a reply. See Reply, 25 ECF No. 132. That request is granted. The proposed reply is deemed filed.
1 The title of its first filing was “Notice of Motion and Motion . . . for Leave to File Appeal,” and the attached memorandum confirmed the filing was a request for permission from this court to appeal. See ECF No. 122; see also ECF No 122-1 (attaching a proposed notice of appeal). 1 The threshold question is whether the court should entertain HLF’s request for a decision 2 on an expedited schedule. This court’s standing order for civil cases requires a party requesting 3 such relief ex parte to include an affidavit with a “satisfactory explanation” of, among other 4 things, why its request “cannot be noticed on the court’s law and motion calendar as provided by 5 Local Rule 230.” Chief Judge Kimberly J. Mueller Standing Orders for Civil Cases.2 This 6 requirement implements the presumption that the time-tested schedules and safeguards imposed 7 by the Federal Rules of Civil Procedure are the fair and reliable way to resolve motions in civil 8 litigation. See, e.g., Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 491 (C.D. 9 Cal. 1995). This presumption, in turn, prevents ex parte applications from becoming a tool “for 10 parties who have failed to present requests when they should have.” In re Intermagnetics Am., 11 Inc., 101 B.R. 191, 193 (C.D. Cal. 1989). Ex parte applications “should not be used as a way to 12 ‘cut in line’ ahead of those litigants awaiting determination of their properly noticed and timely 13 filed motions.” Id. 14 Here, HLF explained its urgency by citing the deadlines imposed by Federal Rule of 15 Appellate Procedure 4 and by pointing out that opening briefs in the appeal it wishes to join were 16 due before this court’s next available civil law and motion hearing date. See Ex Parte App. at 1, 17 18–19. It also claims it did not know about this case until after the court imposed a preliminary 18 injunction. See id. at 2–3. There are three problems with this explanation. 19 The first problem is HLF’s failure to participate in this litigation in the year and a half it 20 has been pending. See Compl., ECF No. 1 (filed October 7, 2019). Soon after the Chamber filed 21 its original complaint, it served a notice of this action on Andre A. Khansari, who has often 22 represented HLF in private enforcement actions about acrylamide under Proposition 65, and who 23 has requested that “all communications” about HLF’s Proposition 65 notices be sent to him. See 24 Norris Decl.¶¶ 3–4, ECF No. 131-1. Mr. Khansari forwarded the notice to HLF’s Chief Officer, 25 who admits he received it at that time in what he describes as his “old mail box.” See Steinman 26 Decl. at 2, ECF No. 128-4. It is unclear from his declaration whether he had forgotten the notice
2 http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/5020/standing- orders/, last visited May 24, 2021. 1 or had not reviewed it. See id. A year later, the Chamber served an additional notice on 2 Katherine Van Meurs, another attorney representing HLF in private litigation about Proposition 3 65. See id. ¶ 7. Like Mr. Khansari, Ms. Van Meurs has requested that her office receive 4 communications about HLF’s Proposition 65 litigation. See id. ¶ 8. According to HLF’s Chief 5 Officer, Ms. Van Meurs did not forward the notice she received from the Chamber of Commerce. 6 Steinman Decl. at 2. The reason is unclear. HLF’s Chief Officer believes he should also have 7 received a notice of this litigation because he is HLF’s agent for service of process and because 8 Mr. Khansari and Ms. Van Meurs were not HLF’s counsel of record. See Steinman Decl. at 2. 9 But HLF is not a party to this action, so it had no counsel of record, and as summarized above, 10 Mr. Khansari and Ms. Van Meurs have in fact requested that communications about Proposition 11 65 notices be sent to them. In addition to these notices, the Chamber also cites articles about this 12 case in publications such as the National Law Review, Law360 and Reuters. See Norris Decl. 13 ¶¶ 24–40. HLF does not explain its ignorance of these articles. 14 Sometimes deadlines pass and delays accrue as a result of “excusable neglect,” and if so, 15 urgent relief may yet be available. See Mission Power, 883 F. Supp. at 492 (ex parte applications 16 are ordinarily denied unless “the moving party is without fault in creating the crisis that requires 17 ex parte relief” or “the crisis occurred as a result of excusable neglect”). A party who claims its 18 neglect was excusable must normally show that is the case under the four factors the Supreme 19 Court described in Pioneer Investor Services, Co. v. Brunswick Associates, Ltd.: the length of the 20 delay and its potential impact on the proceedings, the reason for the delay, the danger of 21 prejudice, and whether the movant acted in good faith. See 507 U.S. 380, 395 (1993). HLF has 22 not shown its neglect was “excusable” under this standard. Its delay was long and appears to 23 have been the result of inattention or apathy among its officers and retained counsel. Its delays 24 also imposed an unfairly tight timeline on the Attorney General and the Chamber of Commerce, 25 not to mention HLF itself. Accelerated briefing and hearing deadlines force unnecessary errors 26 and divert a court’s attention from other urgent matters. See Mission Power, 883 F. Supp. at 491– 27 92. The court cannot discern good faith in HLF’s actions. HLF could have renewed its original 28 ///// 1 motion quickly after it was denied without prejudice, and it could have worked with the Attorney 2 General and the Chamber of Commerce to find a practicable briefing and hearing schedule. 3 HLF’s second problem is its alternative to ex parte relief. The court has granted a 4 preliminary injunction here, not a permanent injunction. Nothing prevents HLF from moving to 5 intervene on the ordinary schedule, and if the court granted its motion, it could participate in the 6 remainder of this litigation. A pretrial schedule will soon be set, and the case will move forward 7 through discovery, dispositive motion practice and a trial if necessary. See Minute Order, ECF 8 No. 127 (setting status (pretrial scheduling) conference for July 8, 2021). HLF could also move 9 to intervene on an ordinary timeline without losing the opportunity to seek reconsideration or the 10 dissolution of the preliminary injunction. HLF also has options for participating in CERT’s 11 appeal. It could advocate as an amicus curiae. And if, as HLF argues, the Ninth Circuit can 12 permit an appeal by a nonparty without this court’s blessing, see Reply at 9–10, then HLF may 13 seek that relief from the Circuit directly. 14 HLF’s third problem is the briefing deadline it cites to explain its need for urgency. It 15 waited more than two weeks before renewing its request for leave to file an appeal, but by then, 16 opening briefs were already due in the appeal it asks to join. See id. at 1. CERT had in fact 17 already filed its opening brief. See Opening Br., Cal. Chamber of Commerce v. Becerra, No. 21- 18 15745 (9th Cir. filed May 19, 2021), Dkt. No. 11. So even if the court were to consider HLF’s 19 motion on an accelerated track and then grant the relief it seeks, it is unclear whether HLF could 20 participate as an appellant. 21 In sum, if HLF had participated in this case during the last year and half, as CERT has 22 done, then it would not have needed to scramble for relief at the last minute. It could have moved 23 to dismiss and for summary judgment. It could have opposed the motion for a preliminary 24 injunction. It could have filed a timely notice of appeal. Moreover, it has adequate alternatives to 25 expedited relief. This court’s heavy caseload in particular prevents it from entertaining urgent ex 26 parte requests for relief that, like this one, are not truly necessary. 27 The court therefore orders as follows: (1) The request for leave to file a reply at ECF 28 No. 132 is granted. The proposed reply is deemed filed. (2) The ex parte application at ECF 1 No. 128 is denied without prejudice to a motion to intervene noticed and filed in compliance 2 with this District’s local rules and this court’s standing orders. 3 This order resolves ECF No. 128 and 132. 4 IT IS SO ORDERED. 5 DATED: May 25, 2021.