1 Steven R. Young Atty. Bar #96258.
LAW OFFICES OFSTEVEN R. YOUNG
2 Civil Justice Attorneys
600 Anton Blvd. Suite 650
3 Costa Mesa Calif’ornia 92626
Tele: [714) 673-6OO Fax: (714) 545-0355
4 li4mail: syoung@juryattorney.com
5 Attorney for Plaintiff Mission Viejo Florist, Inc.
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11
12 MISSION VIEJO FLORIST, INC., a CASE NO. SACV 16-01841-CJC
13
Califorilia Corporation, (KESx)
Plaintiff,
14 PLAINTIFF’S REPLY TO
DEFENDANT ORCHARD’S
15 v. OPPOSITION TO
APPLICATION FOR AN
16 ) ORDER DISMISSING THIS
ORCHARD SUPPLY COMPANY LLC,) ACTION WITHOUT
17 a North Carolina Limited Liability ) PREJUDICE DECLARATION
18
Company; DOES 1-10, lilciusive, ) OF STEVENR. YOUNG
[Proposed order previously
19 Defendants. lodged]
20
21
22 TO THE COURT, THE PARTIES HEREIN, AND THEIR ATTORNEYS
23 OF RECORD:
24
25 Plaintiff Mission Viejo Florist replies to Defendant Orchard’s opposition
26 to Plaintiff’s Applicatioll to dismiss this action without prejudice as follows:
27
28
PLAINTIFF’S REPLY TO DEFENDANT ORCHARD’S OPPOSITION TO
APPLICATION FOR AN ORDER DISMISSING THIS ACTION WITHOUT
PREJUDICE; DECLARATION OF STEVEN R. YOUNG
Case 8:16-cv-01841-CJC-KES Document 148 Filed 03/07/19 Page 1 of 8 Page ID #:5627
1 1. INTRODUCTION: STATEMENT OF FACTS.
2
3 Orchard’s opposition does not address the colltext in which MV
4 Florist’s application to dismiss without prejudice arises. The difference is
5 that there is another action pending between the parties in state court1 that
6 preserves all of Orchard’s argulneilts, defenses, and rights.
7
8 In December 2018, before Plaintiff asked this court to dismiss this
9 action without prejudice, Plailltiff filed in the state court an amendment to a
10 cross complaint that designated Orchard as a cross defendant. Defendant
11 Orchard filed two motions in the State Court Action attacking the
12 amendment: 1) a demurrer claiming the cross complaint did not state any
13 cause of action against Orchard, and 2) a motion to strike the amendment
14 because Orchard was absolutely unprepared to defend the state action.
15 Orchard’s motion to strike ill the State Court Action states:
16
17 “This delay has resulted in considerable prejudice to Orchard as
18 it had no opportunity to participate in discovery and ri lings
19 in this litigation for the past two years, and must now come
20 from behind to prepare to defend itself at trial on an
21 expedited basis.”2 [Defendant’s Notice of Motion and Motion to
22
________________________
23 The landlord for both MV Florist and Orchard sued MV Florist in the state
24 court action. In December 2018, before Orchard filed its Motions in Limine, MV Florist
filed an amendment to cross complaint to name Orchard as a cross defendant.
25
26
2 Orchard does not disclose what the time table to trial is, or even how Orchard
knows what the state court judge will do with the designation of a new party. The
27 likelihood of maintaining the present trial date is remote, unless Orchard insists. Therefore
28
the “burden” of expedited preparation is totally under the control of Orchard.
PLAINTIFF’S REPLY TO DEFENDANT ORCHARD’S OPPOSITION TO
APPLICATION FOR AN ORDER DISMISSING THIS ACTION WITHOUT
PREJIJDICE; DECLARATION OF STEVEN R. YOUNG
Case 8:16-cv-01841-CJC-KES Document 148 Filed 03/07/19 Page 2 of 8 Page ID #:5628
1 Dismiss (Barrows i\’Iotion) or, ill the Alternative, to Stay the
2 Actioi, Exhibit A to Declaration of Steven. R. Young at page 2
3 lilles 20 to 22]
4
5 Orchard does not state what discovery it would conduct that it has not
6 already coilducted ill this action. Orchard does not state what defenses it
7 could not assert in the state court. Orchard does not explain why the
8 discovery conducted ill this case could not be used in the State Court Action.
9
10 Orchard’s argumeilts 111 the state case sharply contrast with the
11 Opposition Defendailt Orchard filed here:
12
13 “Orchard would also suffer prejudice if the Court granted
14 dismissal without prejudice because the action has been
15 pending for over two years, the parties have engaged i’n
16 significant discovery and have prepared for a trial that was
17 to begin in just over a week.” [Opposition. of Defendant Orchard
18 Supply Company, LLC to Plaintiff Mission Viejo Florist, Illc.’s
19 Application for an Order Dismissing this Action Without
20 Prejudice, [Dkt. 147] at page 5 lines 3 to 6]
21
22 2. ORCHARD’S MOVING PAPERS DO NOT DEMONSTRATE
23 LEGALLY COGNIZABLE PREJUDICE BECAUSE ORCHARD
24 FAILED TO IDENTIFY A SINGLE ARGUMENT, DEFENSE,
25 OR RIGHT ORCHARD WOULD LOSE FROM A DISMISSAL
26 WITHOUT PREJUIJICE.
27
28
3
PLAINTIFF’S REPLY TO DEFENDANT ORCHARD’S OPPOSITION TO
APPLICATION FOR AN ORDER DISMISSING THIS ACTION WITHOUT
PREJUDICE; DECLARATION OF STEVEN R. YOUNG
Case 8:16-cv-01841-CJC-KES Document 148 Filed 03/07/19 Page 3 of 8 Page ID #:5629
1 Orchard argues against MV Florist’s Rule 41(a)(2) request, that it
2 would suffer prejudice if the Court grants MV Florist’s request. But what is
3 the prejudice if the Court were to do so? Orchard would save the expense of a
4 trial in a week. Because Orchard is now a cross defendant in the State Court
5 Action, it will still have every defeilse available to it, and all the discovery
6 Orchard obtained in this action. On the other hand, if the Court denies MV
7 Florist’s request, MV Florist will suffer the detriment of two opponents, in
8 two separate actions, pointing at each other and denyillg responsibility. A
9 “balailcing of the prejudice” between MV Florist and Orchard finds that
10 Orchard suffers 110 prejudice from a dismissal with prejudice while fvIV
11 Florist suffers great prejudice if the application is dellied.
12
13 3. THE COURT SHOULD BALANCE THE COMPETING
14 INTERESTS BETWEEN MV FLORIST AND ORCHARD IN
15 DETERMINING WHETHER TO GRANT MV FLORIST’S
16 REQUEST FOR DISMISSAL WITHOUT PREJUDICE.
17
18 The Court should balance two competing jilterests in considering MV
19 Florist’s request. The first is set forth in Westlands Water District v.
20 United States, a case Orchard’s opposition cited. Ill Westlands the court
21 held:
22
23 “When ruling on a motion to dismiss without prejudice, the
24 district court must determine whether the defendant will suffer
25 some plain legal prejudice as a result of the dismissal.”
26 [Vest1ands Water Dist. v. United States, 100 F.3d 94, 96 (9th
27 Cir.1996)]
28
4
PLAINTIFF’S REPLY TO DEFENDANT ORCHARD’S OPPOSITION TO
APPLICATION FOR AN ORDER DISMISSING THIS ACTION WITHOUT
PREJUDICE; DECLARATION OF STEVEN R. YOUNG
Case 8:16-cv-01841-CJC-KES Document 148 Filed 03/07/19 Page 4 of 8 Page ID #:5630
Case 8:16-cv-01841-CJC-KES Document 148 Filed 03/07/19 Page 5 of 8 Page ID #:5631
Case 8:16-cv-01841-CJC-KES Document 148 Filed 03/07/19 Page 6 of 8 Page ID #:5632
Case 8:16-cv-01841-CJC-KES Document 148 Filed 03/07/19 Page 7 of 8 Page ID #:5633
Case 8:16-cv-01841-CJC-KES Document 148 Filed 03/07/19 Page 8 of 8 Page ID #:5634
