1 KRISTINE L. MOLLENKOPF (SBN 185914) kristine.mollenkopf@lincolnca.gov 2 City of Lincoln, City Attorney’s Office 3 600 Sixth Street Lincoln, CA 95648 4 Tel: (916) 434-2428

5 William D. Brown (SBN 125468) bbrown@brownandwinters.com 6 Jeffrey T. Orrell (SBN 237581) 7 jorrell@brownandwinters.com Janet Menacher (SBN 291365) 8 jmenacher@brownandwinters.com Charles D. Grosenick (SBN 317715) 9 cgrosenick@brownandwinters.com Brown & Winters 10 2533 South Coast Highway, Suite 270 11 Cardiff-by-the-Sea, CA 92007-2133 Tel: 760-633-4485/Fax: 760-633-4427 12

13 Attorneys for Plaintiff/Counter-Defendant CITY OF LINCOLN

14

UNITED STATES DISTRICT COURT

15

EASTERN DISTRICT OF CALIFORNIA

16

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

18 Plaintiff, JOINT STIPULATION AND

ORDER REGARDING

19 v. MODIFICATION OF THE SEVENTH

AMENDED PRETRIAL SCHEDULING

20 C thO roU uN ghT 1Y 0 0O , F in P cL luA siC vE e,R ; and DOES 1 ORDER AND EXTENSION OF TIME TO 21 FILE THE CITY OF LINCOLN’S Defendants. OPPOSITIONS TO THE COUNTY OF 22 _______________________________________ PLACER’S MOTIONS FOR SUMMARY

JUDGMENT AND THE COUNTY OF

23 AND RELATED COUNTER CLAIMS. PLACER’S REPLIES

24 Current Summary Judgment Hearing: March 10, 2023 25 Time: 10:00 a.m. Judge: Hon. Kimberly J. Mueller 26 Courtroom: 3

27 28 00058155.1 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 met 3 and conferred and hereby jointly and respectfully request that the Court modify the Seventh Amended 4 Pretrial Scheduling Order (Dkt. 64) to allow an extension of the dispositive motion hearing deadline 5 solely with respect to the County’s pending Motions for Summary Judgment (Dkt. 78, 79) by forty-two 6 (42) days to March 31, 2023.1 7 In addition, the Parties respectfully request that the Court grant the following extensions of time 8 for filing the oppositions and the replies to the County’s Motions for Summary Judgment: 9 1. The City may file its Oppositions to the County’s Motions for Summary Judgment on or before 10 February 10, 2023; 11 2. The County may file its Replies to the City’s Oppositions to the County’s Motions for Summary 12 Judgment on or before March 2, 2023. 13 The Parties jointly submit the following summary of previous modifications to the deadlines in 14 the scheduling orders and a statement of good cause in support of their instant request. 15

PREVIOUS MODIFICATIONS TO THE PRETRIAL SCHEDULING ORDER

16 A. First Amended Pretrial Scheduling Order 17 In November 2019, the Parties requested and received an Order (Dkt. 17, 18) extending the 18 deadline for fact discovery in this matter from December 16, 2019, to March 9, 2020. The Parties 19 provided the following reasons for that initial 12-week extension of the fact discovery deadline: 20 1. To allow the City to complete its review and voluntary production to the County of select 21 documents from the voluminous County Archive documents; 22 2. To allow the City to complete its sixth voluntary production (consisting of approximately 23 1,600 pages that the City copied from County archives, and approximately 3,500 pages 24

25 1 On January 17, 2023, on its own motion, the Court reset the hearing on the County’s Motions for Summary Judgment from February 17, 2023, to March 10, 2023. (Dkt. 80.) This continued hearing 26 date is within the proposed extension of time for these Motions to be heard; however, if the Court wishes to reset the hearing to a date between March 10, 2023, and March 31, 2023, the Parties would have no 27 objections. 28 1 of additional supplemental information that City’s counsel obtained from publicly

2 available locations);

3 3. To allow the Parties to determine whether there are additional percipient witnesses, locate

4 those witnesses and interview them, with the goal of taking de positions; 5 4. To allow the Parties to conduct any further written discovery arising from their review 6 of the County Archive documents; 7 5. To allow the Parties to have a full opportunity to meet and confer, narrow the scope of 8 their Rule 30(b)(6) deposition notices, and hopefully ease the burden on their respective 9 public entity employees/representatives; and 10 6. To possibly aid in the mediation and settlement process, by further eliminating factual 11 disputes related to the Parties’ alleged contribution to conditions at the Landfill and their 12 respective liability, if any, therefore. 13 B. Second Amended Pretrial Scheduling Order 14 In February 2020, the Parties requested and received an Order (Dkt. 20, 21) continuing the 15 deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions 16 in this matter by six (6) months. The Parties provided the following reasons for a six-month continuance 17 of deadlines: 18 1. To allow the Parties to continue their meet and confer efforts and complete fact and expert 19 discovery in a timely manner; 20 2. To allow the Parties to continue their search for potential witnesses with relevant 21 knowledge of events that took place over 60 years ago; 22 3. To allow the County’s recently retained outside environmental counsel adequate time to 23 review the voluminous production of documents; 24 4. To allow the Parties adequate time to prepare their Federal Rule of Civil Procedure 25 30(b)(6) witnesses for their respective depositions; and 26 5. To allow the Parties to explore settlement discussions after completing the discovery 27 process. 28 /// 1 C. Third Amended Pretrial Scheduling Order

2 In August 2020, the Parties requested and received an Order (Dkt. 22, 23) continuing the

3 deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions

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

2 E. Fifth Amended Pretrial Scheduling Order

3 In August 2021, the Parties requested and received an Order (Dkt. 31, 32) continuing the

4 deadlines for fact discovery, designation of expert witnesses, expert discover y and dispositive motions 5 in this matter by ninety (90) days. The Parties provided the following reasons for a ninety-day 6 continuance of deadlines: 7 1. To allow the Parties to diligently identify and review the voluminous supplemental 8 production of relevant documents; identify and prepare fact witnesses for deposition; and 9 finalize discovery and evidentiary agreements. 10 2. To allow the Parties to meet and confer regarding the scope and timing of their respective 11 Fed. R. Civ. Proc. Rule 30(b)(6) depositions. 12 3. To allow the Parties to explore settlement discussions after completing discovery. 13 F. Sixth Amended Pretrial Scheduling Order 14 In March 2022, the Parties requested and received an Order (Dkt. 45) continuing the deadlines 15 for designation of expert witnesses by ninety (90) days to June 7, 2022, and an extension of the deadline 16 to exchange rebuttal lists of expert witnesses by seventy-seven (77) days to August 22, 2022. The 17 deadline to conclude expert discovery was extended by thirty-eight (38) days to October 14, 2022. Our 18 dispositive motion deadline remained December 9, 2022. The Parties provided the following reasons 19 for the requested continuance: 20 1. The County’s lead expert is at the hospital with his immediate family member, who had 21 been involved in a serious accident. The County was informed that this situation would 22 impact his availability for all of the expert’s matters for an indeterminate amount of time. 23 G. Seventh Amended Pretrial Scheduling Order 24 In September 2022, the Parties requested and received an Order (Dkt. 64) continuing the 25 deadlines for expert discovery by fourteen (14) days to October 28, 2022, and an extension of the 26 dispositive motion hearing deadline by seventy (70) days to February 17, 2023 – as well as a stay on 27 filing any dispositive motions until after January 1, 2023. The Parties provided the following reasons 28 for the requested continuance: 1 1. One of the City’s experts was not available for deposition due to prescheduled overseas

2 travel plans during the months of September and October and was not expected to be available

3 for deposition until mid-October, after the current expert discovery cutoff.

4 2. The County’s expert was unavailable for deposition prior to the expert discovery deadline 5 due to the scheduling of two trials. 6 3. Both experts were available for deposition shortly after the October 14, 2022 expert 7 discovery cutoff. 8 Now, the Parties seek the Court’s approval to extend the dispositive motion hearing deadline 9 solely with respect to the County’s pending Motions for Summary Judgment (Dkt. 78, 79) to March 31, 10 2023, based on the agreement between the Parties to seek additional time for the City to file its 11 Oppositions and the County to file its Replies to the County’s two Motions for Summary Judgment, 12 subject to Court approval. The Parties agree that good cause exists for this extension due to the 13 complexity of this environmental litigation and the large volume of records involved in the case, 14 spanning seven decades or more. This agreement upon filing dates would extend the deadline for the 15 County’s Replies to a date after the current dispositive motion hearing deadline of February 17, 2023. 16 An extension of the dispositive motion hearing deadline solely with respect to the County’s pending 17 Motions for Summary Judgment and time to oppose and to reply to those Motions for Summary 18 Judgment is respectfully requested, for the reasons set forth below. 19 STATEMENT OF GOOD CAUSE FOR MODIFYING THE DISPOSITIVE MOTION

HEARING DEADLINE SOLELY WITH RESPECT TO THE COUNTY’S PENDING

20

MOTIONS FOR SUMMARY JUDGMENT AND THE BRIEFING SCHEDULE RELATED

21 THERETO 22 The Parties jointly submit the following statement of good cause in support of their stipulation 23 and request a forty-two (42) day extension of the dispositive motion hearing deadline solely with respect 24 to the County’s pending Motions for Summary Judgment (Dkt. 78, 79) and an extension of the time 25 allotted under Local Rule 230 to file the Oppositions [fourteen (14) day extension] and Replies [ten (10) 26 day extension] to the County’s two Motions for Summary Judgment. 27 A district court has “broad discretion in supervising the pretrial phase of litigation.” C.F. v. 28 Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011). A scheduling order may be modified 1 “for good cause and with the judge’s consent.” Fed. R. Civ. Proc. 16(b)(4); Johnson v. Mammoth

2 Recreations, 975 F.2d 604, 608 (9th Cir. 1992); see also, Dkt. 16, 6:22-26. The key factors considered

3 in determining good cause are whether the party moving for modification was diligent in trying to

4 complete discovery in a timely manner, and the party’s reasons for seekin g modification. Johnson, 5 supra, 975 F.2d at 609; C.F., supra, 654 F.3d at 984; Tapias v. Mallet & Co., 2017 U.S. Dist. LEXIS 6 144406, at *1-2 (N.D. Cal. Sep. 6, 2017). The district court may modify the pretrial schedule “if it 7 cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson, supra, 975 8 F.2d at 609; Tapia, supra, 2017 U.S. Dist. LEXIS 144406, at *1. 9 A three-step inquiry may be applied in assessing diligence for determining good cause under 10 Rule 16:

11 [T]o demonstrate diligence under Rule 16’s “good cause” standard, the movant may be required to show the following: (1) that [they were] diligent in assisting the Court in 12 creating a workable Rule 16 order; (2) that [their] noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding [their] diligent efforts to comply, because of the 13 development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that [they were] diligent in seeking 14 amendment of the Rule 16 order, once it became apparent that [they] could not comply with the order. 15 Grant v. United States, 2011 U.S. Dist. LEXIS 131662, at *14 (E.D. Cal. Nov. 14, 2011) (citing 16 Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)). 17 18 A. The Parties’ Efforts to Prepare a Workable Rule 16 Order 19 The Parties were diligent in assisting the Court in creating a Rule 16 Order. As mentioned in 20 the prior Stipulation and Orders, the Parties met and conferred, and filed their “Joint Report of Parties’ 21 Planning Meeting” on May 16, 2018 (Dkt. 12). From the outset, the Parties recognized that this action 22 would be complex, both factually and legally. The City alleges that waste disposal activities occurred 23 over sixty years ago, from the late 1940s to 1976. The City’s asserted contaminant response activities 24 have spanned several decades since the closure of the Landfill, and the City alleges those are ongoing 25 today. 26 The Parties brought claims against one another under, inter alia, the Comprehensive Environmental 27 Response, Compensation, and Liability Act (“CERCLA”), legislation which has been aptly called an 28 inherently “complex statute with a maze-like structure and baffling language.” ASARCO, LLC v. 1 Celanese Chemical Co., 792 F.3d 1203, 1208 (9th Cir. 2015) (citing California ex. rel. Cal. Dep’t. of

2 Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 663 (9th Cir. 2004)) (internal quotations

3 omitted). Recognizing that this case involved a complex environmental statute, six decades of

4 documentation and potentially numerous witnesses, the Parties requested ap proximately a year-and-a- 5 half to complete fact discovery. See Dkt. 16, p. 14. 6 The Pretrial Scheduling Order was reasonably calculated to address the complexities of this case, 7 and it was created with the active participation of the Parties. However, as discussed below, both the 8 complexity of this environmental litigation, in addition to the large volume of records involved in the 9 case, justify this request. 10 B. The County’s Two Motions for Summary Judgment 11 The Parties agree that this is a complex environmental case covering approximately two-and-a- 12 half decades of historical operations, nearly five decades of post-closure operations and regulatory files, 13 and hundreds of thousands of pages of documents produced in discovery. The County filed its two 14 Motions for Summary Judgment – one addressing the City’s First Amended Complaint, and one 15 addressing the County’s CERCLA section 113 Counterclaim on January 13, 2023. Eastern District of 16 California Local Rule 230(c) sets the deadline for filing an opposition to a motion at fourteen days. 17 Local Rule 230(d) sets the deadline for filing a reply to an opposition to a motion at ten days. 18 The Parties have met and conferred and agreed to request an extension of the City’s deadline to 19 oppose the County’s Motions for Summary Judgment and to request a proportionate extension of the 20 County’s deadlines to reply to provide the Parties with sufficient time to fully present their legal 21 positions, facts and supporting evidence to the County’s two Motions for Summary Judgment. As such, 22 the Parties agree and respectfully request that the City’s Oppositions to the County’s Motions for 23 Summary Judgment be extended by fourteen (14) days to February 10, 2023, and the County’s Replies 24 to the City’s Oppositions be extended by ten (10) days to March 2, 2023. Assuming the Court agrees to 25 these relatively brief extensions, the County’s Replies would be due after the current dispositive motion 26 hearing deadline of February 17, 2023. 27 Based upon the foregoing, the Parties have agreed to jointly request an extension of the 28 dispositive motion deadline solely with respect to the County’s pending Motions for Summary Judgment 1 (Dkt. 78, 79), as well as extensions of the deadline to file Oppositions and Replies in relation to the

2 County’s Motions for Summary Judgment.

3 PROPOSED MODIFICATIONS OF TIME TO OPPOSE AND REPLY IN RELATION TO THE 4 COUNTY’S MOTIONS FOR SUMMARY JUDGME NT The Parties hereby stipulate to and respectfully request that the Court approve, pursuant to Local Rule 5 144, the following: 6 1. The City may file its Oppositions to the County’s Motions for Summary Judgment on or before 7 February 10, 2023; 8 2. The County may file its Replies to the City’s Oppositions to the County’s Motions for Summary 9 Judgment on or before March 2, 2023. 10

PROPOSED MODIFICATIONS TO THE SEVENTH AMENDED PRETRIAL SCHEDULING

11

ORDER

12 The Parties propose that, and respectfully request that the Court approve, the following sections 13 of the Amended Pretrial Scheduling Order (Dkt. 18) as amended by the Seventh Amended Pretrial 14 Scheduling Order (Dkt. 64) be amended as follows: 15 Section VI. MOTION HEARING SCHEDULE 16 All dispositive motions, except motions for continuances, temporary restraining orders or other 17 emergency applications, shall be heard no later than February 17, 2023; however, this deadline shall 18 not apply to the County’s pending Motions for Summary Judgment (Dkt. 78, 79), which shall be heard 19 no later than March 31, 2023. 20

21 Dated: January 18, 2023 BROWN & WINTERS

22 By: /s/ Charles D. Grosenick 23 WILLIAM D. BROWN

JEFFREY T. ORRELL

24 JANET MENACHER

CHARLES D. GROSENICK

25 Attorneys for Plaintiff and Counter-Defendant

CITY OF LINCOLN

26 27 /// 28 1 Dated: January 18, 2023 HARTMAN KING PC

2 By: /s/ Jennifer Hartman King (authorized on 1/18/23) 3 JENNIFER HARTMAN KING

ALANNA LUNGREN

4 WILLIAM D. MARSH

J. R. PARKER

5 ANDREYA WOO NAZAL Attorneys for Defendant and 6 Counterclaimant COUNTY OF PLACER

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1

2

3

4 5

6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CITY OF LINCOLN, Case No.: 2:18-CV-00087-KJM-AC

12 Plaintiff, EIGHTH AMENDED PRETRIAL v. SCHEDULING ORDER AND ORDER 13

TO EXTEND THE FILING TIME FOR

14 COUNTY OF PLACER; and DOES 1 THE CITY OF LINCOLN’S through 100, inclusive, OPPOSITIONS TO COUNTY OF 15 PLACER’S MOTIONS FOR SUMMARY Defendants. JUDGMENT AND THE COUNTY OF 16

PLACER’S REPLIES

17 Upon consideration of Plaintiff/Counter-Defendant City of Lincoln’s (“City”) and 18 Defendant/Counterclaimant County of Placer’s (“County”) Stipulation And Order to Modify the 19 Seventh Amended Pretrial Scheduling Order and to Extend Time for the filing of the City’s Oppositions 20 and the County’s Replies in relation to the County’s Motions for Summary Judgment, and finding good 21 cause therefor, the Court hereby amends the Seventh Amended Pretrial Scheduling Order (Dkt. 64) as 22 follows: 23 Section VI. MOTION HEARING SCHEDULE 24 All dispositive motions, except motions for continuances, temporary restraining orders or other 25 emergency applications, shall be heard no later than February 17, 2023; however, this deadline shall 26 not apply to the County’s pending Motions for Summary Judgment (Dkt. 78, 79), which shall be heard 27 no later than March 31, 2023. Moreover, the Court orders that: 28 1 1. The City may file its Oppositions to the County’s Motions for Summary Judgment (Dkt. 78, 79) 2 on or before February 10, 2023; and 3 2. The County may file its Replies to the City’s Oppositions to the County’s Motions for Summary 4 Judgment (Dkt. 78, 79) on or before March 2, 2023. 5 IT IS SO ORDERED. (] 6 ( eae Murl { q_/ , DATED: January 23, 2023. CHIEF NT] ED STATES DISTRICT JUDGE

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ll- JOINT STIPULATION AND ORDER REGARDING MODIFICATION OF THE SEVENTH AMENDED PRETRIAL