Foh Online Corporation vs. Branded Online, Inc.

Response

Cal. Super. - 4th Dist.July 20, 2016

Donald A. English, Esq. (State Bar No. 115569) Christy I. Yee, Esq. (State Bar No. 166238) ENGLISH & GLOVEN, A Professional Corporation 550 West C Street, Suite 1800 San Diego, CA 92101 Telephone: (619) 338-6610 Facsimile: (619) 338-6657 Email: dae@englishapc.com ciy@englishapc.com Attorneys for Defendant and Cross-complainant BRANDED ONLINE, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER FOH ONLINE CORPORATION D/B/A FREDERICK’S OF HOLLYWOOD,a Delaware corporation, Plaintiff, Vv. BRANDED ONLINE, INC., a Delaware corporation; STEELE LOGISTICS, INC., a California corporation; ACTIONFREIGHT DISTRIBUTION, INC., a California corporation; and ELEETS 3PL A/K/A 3PL LOGISTICS, INC., a California corporation; and DOES 1-10, inclusive, Defendants. BRANDED ONLINE, INC., a Delaware corporation, Cross-complainant, Vv. FOH ONLINE CORPORATION D/B/A FREDERICK’S OF HOLLYWOOD, a Delaware corporation; BENDON USA, INC, a Delaware corporation; BENDON GROUP LTD., business form unknown; SYMPHONY COMMERCE, INC., a California corporation; and ROES 1 to 100, inclusive, Cross-defendants. N e ” N e e ” N r ” N e ” N e ” N e ” M e ” M e N e ” N e N a e N e N e N e ” N e N e N e N e N e N e N e N e N e N e N e S e N e N e N e N e N e N e N e N e N e Case No. 30-2016-00864604-CU-BC-CJC Assigned for all purposesto: Judge Nathan Scott Dept. C12 BRANDED ONLINE, INC.’S RESPONSE TO EX PARTE APPLICATION FOR ORDER TO CONTINUE TRIAL AND RELATED DATES AND DEADLINES; DECLARATION OF REBECCA A. KURTZ Date: September 7, 2017 Time: 1:30 p.m. July 20, 2016 February 5, 2018 Complaint: Trial Date: RESPONSE TO EX PARTE APPLICATION FOR ORDER TO CONTINUE TRIAL AND RELATED DATES N o 10 11 12 13 14 15 16 17 18 19 20 21 22 | 23 24 25 26 27 28 \ O o o ~ ~ A N (9 ) H W I, Rebecca A. Kurtz, declare as follows: 1. I am an attorney at law licensed to practice before all courts in the State of California and am an attorney with the law firm of English & Gloven, A Professional Corporation, counsel of record for Defendant and Cross-Complainant Branded Online, Inc.’s (“Branded”). I have personal knowledge of the following information and,if called upon to do so, could and would competently testify thereto. 2. I submit this declaration in support of Branded’s response to the ex parte application of Cross-Defendant Symphony Commerce, Inc. (“Symphony”), for an order to continue the trial and related dates and deadlines. 3. Counsel for Branded is not available for trial in May 2018, as proposed by cross- defendant, due to a previously scheduled trial. Additionally, counsel for Branded is not available fortrial in June 2018 due to a previously scheduled trial. Counsel for Branded is available in March 2018 for trial. 4. On August 31, 2017, cross-defendants FOH and Symphony jointly brought an ex parte motion seeking a trial continuance and a continuance of the settlement conference date. The court granted relief in the form of continuing the settlement conference date, but denied cross-defendants’ request to continue the trial date. Symphony has not presented facts or law not previously available to warrant a second ex parte request one week later. 5. This week cross-defendants seek a three month continuance ofthe trial date on the ground that Symphony discovered new facts on August 25, 2017 related to cross-defendants’ evaluation of another e-commerce provider in early 2016. As a result, Symphony claims it needs three additional months to bring a motion for summary judgment against Branded. These facts were available to Symphony last week and do not equate to new facts or circumstances that warrant a renewed request for a trial continuance. Further, it is not clear how FOH’s and/or the Bendon cross-defendants’ alleged evaluation of another e-commerce providerat the same time it was actively working with Symphony to undermine Branded’s rights under the MSA is a material fact that would preclude Branded’s causes of action against Symphony as a matter oflaw. Branded has not been made aware ofthese alleged new facts through document productions or other written discovery. RESPONSE TO EX PARTE APPLICATION FOR ORDER 1 TO CONTINUE TRIAL AND RELATED DATES ~ W L N O 0 3 O Y W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Symphony also claims that written discovery it propounded on September 5,2017 to FOH and the Bendon cross-defendants justifies a three month trial continuance. This is the first discovery propounded to FOH and the Bendon cross-defendants by Symphony since the case was filed a year ago. It is not clear why this new discovery, propounded one day before filing ex parte papers seeking a trial continuance,justifies the emergency relief sought by cross-defendants. 7. Moreover, the cross-defendants have purportedly entered into a joint defense agreement. It appearsthat the cross-defendants have cooperated in the defense ofthis action consistent with their joint defense agreement since January, including withholding documents from production, and the sudden discovery of new critical facts among them is not sufficient ground to delay trial for three months. 8. Counsel for Symphony implies that Branded is responsible for Symphony’s alleged inability to file a motion for summary judgment. The implication is without merit. Branded recently sought a short continuance to respond to limited discovery propounded by Symphony in August 2017. Symphony granted a continuance for three business days. Branded provided substantive responsesto the discovery within the short extension period. Further, Symphony has not communicated to Branded’s counsel at any time that it needs specific documents or information in order to bring a motion for summaryjudgment. Branded has not delayed cross-defendant Symphony’s ability to prepare its motion for summary judgment. 9. Atthis time, Branded does notjoin in the request for or stipulate to a trial continuance as cross-defendant Symphony has not established good cause for the continuance. I declare under penalty of perjury under the laws of the State of California that the foregoing is Ho true and correct. Executed this1 day of September, 2017, at San Diego, California. ~2hess (LF Rebecca A. Kurtz J RESPONSE TO EX PARTE APPLICATION FOR ORDER 2 TO CONTINUE TRIAL AND RELATED DATES