1 OFFICE OF THE PLACER COUNTY COUNSEL

GREGORY S. WARNER (SBN 282490)

2

ERIC C. BRUMFIELD (SBN 306642)

3 175 Fulweiler Avenue Auburn, California 95603 4 Telephone: (530) 889-4044 Facsimile: (530) 889-4069 5 Email: GWarner@placer.ca.gov EBrumfield@placer.ca.gov 6 7 JENNIFER HARTMAN KING (SBN 211313) Exempt From Filing Fees Pursuant To ALANNA LUNGREN (SBN 269668) Government Code Section 6103 8 J. R. PARKER (SBN 320526)

ANDREYA WOO NAZAL (SBN 327651)

9 HARTMAN KING PC 520 Capitol Mall, Suite 750 10 Sacramento, CA 95814 11 Telephone: (916) 379-7530 Facsimile: (916) 379-7535 12 Email: JHartmanKing@HartmanKingLaw.com ALungren@HartmanKingLaw.com 13 JRParker@HartmanKingLaw.com AWooNazal@HartmanKingLaw.com 14

15 Attorneys for Defendant and Counter-Claimant

COUNTY OF PLACER

16

17 UNITED STATES DISTRICT COURT

18 EASTERN DISTRICT OF CALIFORNIA

19 CITY OF LINCOLN, Case No.: 2:18-CV-00087-KJM-AC

20 Plaintiff, JOINT STIPULATION AND

ORDER REGARDING

21 v. MODIFICATION OF THE FIFTH

AMENDED PRETRIAL SCHEDULING

22 COUNTY OF PLACER; and DOES 1 ORDER through 100, inclusive, 23 Defendants. 24

25 26 27 28 1 The parties to this action, Plaintiff/Counter-Defendant City of Lincoln (“City”) and 2 Defendant/Counter-Claimant County of Placer (“County”) (hereinafter collectively, “Parties”), have 3 met and conferred and hereby jointly and respectfully request that the Court modify the Fifth 4 Amended Pretrial Scheduling Order (Dkt. 32) to allow an extension of the current disclosure of expert 5 witness deadline of March 9, 2022, by ninety (90) days to June 7, 2022, and an extension of the 6 rebuttal list of expert witnesses deadline of June 6, 2022, by seventy-seven (77) days to August 22, 7 2022. The completion of expert witness discovery deadline of September 6, 2022, shall be extended by 8 thirty-eight (38) days to October 14, 2022. The dispositive motion hearing deadline shall remain 9 December 9, 2022. 10 The Parties jointly submit the following summary of previous modifications to the deadlines in 11 the scheduling orders and a statement of good cause in support of their instant request. 12 PREVIOUS MODIFICATIONS TO THE PRETRIAL SCHEDULING ORDER 13 A. First Amended Pretrial Scheduling Order 14 In November 2019, the Parties requested and received an Order (Dkt. 17, 18) extending the 15 deadline for fact discovery in this matter from December 16, 2019, to March 9, 2020. The Parties 16 provided the following reasons for that initial 12-week extension of the fact discovery deadline: 17 1. To allow the City to complete its review and voluntary production to the County of 18 select documents from the voluminous County Archive documents; 19 2. To allow the City to complete its sixth voluntary production (consisting of 20 approximately 1,600 pages that the City copied from County archives, and 21 approximately 3,500 pages of additional supplemental information that City’s counsel 22 obtained from publicly available locations); 23 3. To allow the Parties to determine whether there are additional percipient witnesses, 24 locate those witnesses and interview them, with the goal of taking depositions; 25 4. To allow the Parties to conduct any further written discovery arising from their review 26 of the County Archive documents; 27 /// 28 /// 1 5. To allow the Parties to have a full opportunity to meet and confer, narrow the scope of

2 their Rule 30(b)(6) deposition notices, and hopefully ease the burden on their respective

3 public entity employees/representatives; and

4 6. To possibly aid in the mediation and settlement process, by f urther eliminating factual 5 disputes related to the Parties’ alleged contribution to conditions at the Landfill and 6 their respective liability, if any, therefore. 7 B. Second Amended Pretrial Scheduling Order 8 In February 2020, the Parties requested and received an Order (Dkt. 20, 21) continuing the 9 deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions 10 in this matter by six (6) months. The Parties provided the following reasons for a six-month 11 continuance of deadlines: 12 1. To allow the Parties to continue their meet and confer efforts and complete fact and 13 expert discovery in a timely manner; 14 2. To allow the Parties to continue their search for potential witnesses with relevant 15 knowledge of events that took place over 60 years ago; 16 3. To allow the County’s recently retained outside environmental counsel adequate time to 17 review the voluminous production of documents; 18 4. To allow the Parties adequate time to prepare their Federal Rule of Civil Procedure 19 30(b)(6) witnesses for their respective depositions; and 20 5. To allow the Parties to explore settlement discussions after completing the discovery 21 process. 22 C. Third Amended Pretrial Scheduling Order 23 In August 2020, the Parties requested and received an Order (Dkt. 22, 23) continuing the 24 deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions 25 in this matter by eight (8) months. The Parties provided the following reasons for an eight-month 26 continuance of deadlines: 27 1. Challenges that were unforeseen in February 2020, resulting from the COVID-19 28 pandemic that impacted this country beginning in March, including difficulties in 1 scheduling and preparing government employees for deposition, as they were required

2 to work remotely, and difficulties in taking such depositions remotely, in light of the

3 document-intensive nature of said depositions;

4 2. To allow the Parties to continue their meet and confer e fforts to finalize various 5 discovery and evidentiary authentication agreements, with the goal of streamlining 6 evidentiary presentations at trial; 7 3. To allow the Parties to explore settlement discussions after completing discovery. 8 D. Fourth Amended Pretrial Scheduling Order 9 In March 2021, the Parties requested and received an Order (Dkt. 27, 28) continuing the 10 deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions 11 in this matter by six (6) months. The Parties provided the following reasons for a six-month 12 continuance of deadlines: 13 1. To allow the Parties to continue their meet and confer efforts to finalize various 14 discovery and evidentiary authentication agreements, with the goal of streamlining 15 evidentiary presentations at trial; 16 2. Challenges resulting from the continued COVID-19 pandemic that impacted this 17 country beginning in March 2020, including difficulties in scheduling and preparing 18 government employees for deposition, as they were required to work remotely, and 19 difficulties in taking such depositions remotely, in light of the document-intensive 20 nature of said depositions; 21 3. To allow the Parties to explore settlement discussions after completing discovery. 22 E. Fifth Amended Pretrial Scheduling Order 23 In August 2021, the Parties requested and received an Order (Dkt. 31, 32) continuing the 24 deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions 25 in this matter by ninety (90) days. The Parties provided the following reasons for a ninety-day 26 continuance of deadlines: 27 /// 28 /// 1 1. To allow the Parties to diligently identify and review the voluminous supplemental

2 production of relevant documents; identify and prepare fact witnesses for deposition;

3 and finalize discovery and evidentiary agreements.

4 2. To allow the Parties to meet and confer regarding the sc ope and timing of their 5 respective Fed. R. Civ. Proc. Rule 30(b)(6) depositions. 6 3. To allow the Parties to explore settlement discussions after completing discovery. 7 Now, the Parties seek the Court’s approval to extend the expert disclosure, rebuttal expert 8 disclosure, and completion of expert discovery deadlines, based on the recent emergency medical 9 development involving the County’s selected expert’s family that has caused the County’s selected 10 lead expert to be unavailable for an indeterminate amount of time. An extension of the deadlines for 11 designation of expert witnesses and expert discovery is required and respectfully requested, for the 12 reasons set forth below. 13 STATEMENT OF GOOD CAUSE FOR MODIFYING THE EXISTING EXPERT

DISCOVERY DEADLINES

14 15 The Parties jointly submit the following statement of good cause in support of their stipulation 16 and request a ninety (90) day extension of the deadline for designation of expert witnesses; a seventy- 17 seven (77) day extension for completion of expert discovery; a thirty-eight (38) day extension to 18 complete expert discovery; and the dispositive motion hearing deadline shall remain December 9, 19 2022. 20 A district court has “broad discretion in supervising the pretrial phase of litigation.” C.F. v. 21 Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011). A scheduling order may be modified 22 “for good cause and with the judge’s consent.” Fed. R. Civ. Proc. 16(b)(4); Johnson v. Mammoth 23 Recreations, 975 F.2d 604, 608 (9th Cir. 1992); see also, Dkt. 16, 6:22-26. The key factors considered 24 in determining good cause are whether the party moving for modification was diligent in trying to 25 complete discovery in a timely manner, and the party’s reasons for seeking modification. Johnson, 26 supra, 975 F.2d at 609; C.F., supra, 654 F.3d at 984; Tapias v. Mallet & Co., 2017 U.S. Dist. LEXIS 27 144406, at *1-2 (N.D. Cal. Sep. 6, 2017). The district court may modify the pretrial schedule “if it 28 /// 1 cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson, supra,

2 975 F.2d at 609; Tapia, supra, 2017 U.S. Dist. LEXIS 144406, at *1.

3 Generally, courts use a three-step inquiry in assessing diligence for determining good cause

4 under Rule 16:

5 [T]o demonstrate diligence under Rule 16’s “good cause” standard, the movant may be required to show the following: (1) that she was diligent in assisting the Court in 6 creating a workable Rule 16 order; (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the 7 development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that she was diligent in 8 seeking amendment of the Rule 16 order, once it became apparent that she could not comply with the order. 9 10 Grant v. United States, 2011 U.S. Dist. LEXIS 131662, at *14 (E.D. Cal. Nov. 14, 2011) (citing 11 Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)). 12 Moreover, several cases within the Eastern District of California confirm that illness of a party, 13 attorney, or expert – which impacts the ability to meet a scheduling deadline – constitutes “good 14 cause” to extend or modify the scheduling order. See, e.g., Martinez-Sanchez, 2020 U.S. Dist. LEXIS 15 235754, at *10-12 (delay caused by COVID-19 sufficiently “good cause” to modify scheduling order); 16 J.A.J. v. Jimenez, 2021 U.S. Dist. LEXIS 84485, at *4-5 (difficulties caused by expert’s deposition 17 limited availability and plaintiff’s lead counsel’s medical issues justified extension of expert discovery 18 deadline); Amazing Ins. v. Dimanno, 2021 U.S. Dist. LEXIS 235453, *3-4 (E.D. Cal. 2021) (severe 19 illness of Plaintiff’s counsel, upcoming trial by Defendants’ counsel, and Christmas holidays justified 20 three-month extension of fact discovery deadline, initial expert disclosures, supplemental expert 21 disclosures, and dispositive motion deadlines); Khoua Vang v. City of Sacramento, 2021 U.S. Dist. 22 LEXIS 120163, *7-8 (E.D. Cal. 2021) (protracted litigation caused by COVID-19 justified extension 23 of scheduling order deadlines); Terry v. Register Tapes Unlimited, 2020 U.S. Dist. LEXIS 32990, *2-3 24 (E.D. Cal. 2020) (although discovery had been “quite drawn out,” brain illness of counsel, coupled 25 with potential need to find new counsel, justified extension of rebuttal expert deadline, and prejudice 26 to opposing counsel was minimal); see also Acad. of Motion Picture Arts & Scis. v. GoDaddy.com, 27 Inc., 2015 U.S. Dist. LEXIS 186633, *7 (C.D. Cal. 2015), (expert witness was diagnosed with 28 terminal cancer and new expert was needed was a “textbook example of good cause under Rule 1 16(b)); and Ortiz v. Vortex Cellular, 2021 U.S. Dist. LEXIS 22694, *1-2 (C.D. Cal. 2021) (“good

2 cause” to extend expert report deadlines shown where expert witness contracted COVID-19 and could

3 not complete expert report on time).

4 A. The Parties’ Efforts to Prepare a Workable Rule 16 Order 5 The Parties were diligent in assisting the Court in creating a Rule 16 Order. As mentioned in 6 the prior Stipulation and Orders, the Parties met and conferred, and filed their “Joint Report of Parties’ 7 Planning Meeting” on May 16, 2018 (Dkt. 12). From the outset, the Parties recognized that this action 8 would be complex, both factually and legally. The City alleges that waste disposal activities occurred 9 over sixty years ago, from the late 1940s to 1976. The City’s asserted contaminant response activities 10 have spanned several decades since the closure of the Landfill, and the City alleges those are ongoing 11 today. The Parties brought claims against one another under, inter alia, the 12 Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), legislation 13 which has been aptly called an inherently “complex statute with a maze-like structure and baffling 14 language.” ASARCO, LLC v. Celanese Chemical Co., 792 F.3d 1203, 1208 (9th Cir. 2015) (citing 15 California ex. rel. Cal. Dep’t. of Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 663 (9th 16 Cir. 2004)) (internal quotations omitted). Recognizing that this case involved a complex environmental 17 statute, six decades of documentation and potentially numerous witnesses, the Parties requested 18 approximately a year-and-a-half to complete fact discovery. See Dkt. 16, p. 14. 19 The Pretrial Scheduling Order was reasonably calculated to address the complexities of this 20 case, and it was created with the active participation of the Parties. However, as discussed below, the 21 family medical emergency and unexpected unavailability of the County’s lead expert witness is the 22 reason for this request. 23 B. Unexpected Unavailability of the County’s Lead Expert Witness 24 Late in the afternoon on Friday, January 28, 2022, the County learned that its lead expert was 25 at the hospital with his immediate family member, who had been involved in a serious accident. The 26 County was told by the expert that this incident would impact his availability for all of the expert’s 27 matters for an indeterminate amount of time and the County might need to find an alternative expert 28 for this case. 1 The County’s expert’s family medical emergency, and subsequent unavailability, makes it

2 prejudicial to the County and likely impossible to comply with the March 9th, 2022 deadline (and other

3 deadlines). The County immediately reached out to counsel for the City, seeking an extension of the

4 expert discovery deadlines and the dispositive motion deadline. The P arties promptly met and 5 conferred and have agreed to seek extensions of the expert discovery deadlines. The Parties propose to 6 keep the dispositive motion hearing deadline unchanged: December 9, 2022. 7 The Parties believe that a ninety (90) day extension of the expert disclosure deadline, and the 8 extension of the remaining expert discovery dates in the Fifth Amended Pretrial Scheduling Order is 9 necessary and appropriate. 10 PROPOSED MODIFICATIONS TO THE FIFTH AMENDED PRETRIAL SCHEDULING

ORDER

11 12 The Parties propose the following sections of the Amended Pretrial Scheduling Order (Dkt. 18) 13 as amended by the Fifth Amended Pretrial Scheduling Order (Dkt. 32) be amended as follows: 14 Section V. DISCLOSURE OF EXPERT WITNESSES 15 All counsel are to designate in writing and serve upon all other parties the name, address, and 16 area of expertise of each expert that they propose to tender at trial not later than June 7, 2022. By 17 August 22, 2022, any party who previously disclosed expert witnesses may submit a rebuttal list of 18 expert witnesses who will express an opinion on a subject covered by an expert designated by an 19 adverse party, if the party rebutting an expert witness designation has not previously retained an expert 20 to testify on that subject. All expert discovery shall be completed by October 14, 2022. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Section VI. MOTION HEARING SCHEDULE

2 All dispositive motions, except motions for continuances, temporary restraining orders or other

3 emergency applications, shall be heard no later than December 9, 2022, as ordered in the Fifth

4 Amended Pretrial Scheduling Order (Dkt. 32). 5 Dated: February 16, 2022 HARTMAN KING PC 6 By: /s/ Alanna Lungren 7

JENNIFER HARTMAN KING

8 ALANNA LUNGREN

J. R. PARKER

9 ANDREYA WOO NAZAL Attorneys for Defendant and 10 Counter-Claimant COUNTY OF PLACER

11 Dated: February 16, 2022 BROWN & WINTERS

12 By: /s/ Jeffrey T. Orrell (as authorized on 2/16/22) 13 WILLIAM D. BROWN

JEFFREY T. ORRELL

14 JANET MENACHER Attorneys for Plaintiff and 15 Counter-Defendant CITY OF LINCOLN

16 17 18 19 20 21 22 23 24 25 26 27 28 1 UNITED STATES DISTRICT COURT

2 EASTERN DISTRICT OF CALIFORNIA

3

4 CITY OF LINCOLN, Case No.: 2:18-CV-0008 7-KJM-AC

5 Plaintiff, SIXTH AMENDED PRETRIAL

SCHEDULING ORDER

6 v.

7 COUNTY OF PLACER; and DOES 1 through 100, inclusive, 8

9 Defendants.

10 11 Upon consideration of Plaintiff/Counter-Defendant City of Lincoln’s (“City”) and 12 Defendant/Counter-Claimant County of Placer’s (“County”) Joint Stipulation Regarding Modification 13 of the Fifth Amended Pretrial Scheduling Order, and finding good cause therefor, the Court hereby 14 amends the Fifth Amended Pretrial Scheduling Order (Dkt. 32) as follows: 15 Section V. DISCLOSURE OF EXPERT WITNESSES 16 All counsel are to designate in writing and serve upon all other parties the name, address, and 17 area of expertise of each expert that they propose to tender at trial not later than June 7, 2022. By 18 August 22, 2022, any party who previously disclosed expert witnesses may submit a rebuttal list of 19 expert witnesses who will express an opinion on a subject covered by an expert designated by an 20 adverse party, if the party rebutting an expert witness designation has not previously retained an expert 21 to testify on that subject. All expert discovery shall be completed by October 14, 2022. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Section VI. MOTION HEARING SCHEDULE 2 All dispositive motions, except motions for continuances, temporary restraining orders or other 3 || emergency applications, shall be heard no later than December 9, 2022, as ordered in the Fifth 4 || Amended Pretrial Scheduling Order (Dkt. 32). 5 IT IS SO ORDERED. DATED: March 1, 2022. 7 l ti / ¢ is 9 CHIEF NT] ED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 00050506.1 -10- JOINT STIPULATION AND ORDER REGARDING MODIFICATION OF THE FIFTH AMENDED PRETRIAL