Free Response in Opposition to Motion - District Court of California - California

Case 3:07-cv-02301-JLS-POR

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Filed 07/24/2008

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GREENBERG TRAURIG, LLP GREGORY F. HURLEY (SBN 126791) MICHAEL CHILLEEN (SBN 210704) 3161 Michelson Drive, Suite 1000 Irvine, California 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 Email: [email protected]; [email protected] Attorneys for Defendant, Ralphs Grocery Company DBA Food 4 Less #780 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA A.J. Oliver, Plaintiff, vs. RALPH'S GROCERY COMPANY dba FOOD 4 LESS #780; CYPRESS CREEK CO., LP dba PTC INVESTMENTS COMPANY, Defendants. CASE NO. 07 CV 2301 JLS POR DECLARATION OF MICHAEL J. CHILLEEN IN SUPPORT OF DEFENDANT RALPHS GROCERY COMPANY'S OPPOSITION TO PLAINTIFF'S MOTION TO MODIFY THE SCHEDULING ORDER AND AMEND HIS COMPLAINT [Opposition to Plaintiff's Motion to Modify the Scheduling Order and Amend His Complaint filed concurrently herewith] Date: August 7, 2008 Time: 1:30 p.m. Ctrm: 6 Honorable Janis L. Sammartino

CHILLEEN DECLARATION
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Case 3:07-cv-02301-JLS-POR

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1 Pursuant to 28 U.S.C. § 1746, I, Michael J. Chilleen, hereby declare as follows: 2

1.

I am an associate with the law firm of Greenberg Traurig LLP and one of the

3 attorneys of record in this case representing Ralphs Grocery Company dba Food 4 Less. 4 ("Food 4 Less"). I am licensed to practice law in the State of California and the United 5 States District Court for the Southern District of California. I make this Declaration 6 based on my own personal knowledge of the matters set forth herein. If called as a 7 witness in this case, I could and would testify as follows: 8

2.

Pursuant to Magistrate Judge Porter's January 17, 2008 order, plaintiff's

9 counsel, Mr. Hubbard, and I met at the subject Food 4 Less store to go over all alleged 10 access barriers on January 31, 2008. At that time, Mr. Hubbard noted that he had 11 inspected the store prior to filing the complaint and that most of the access barriers that 12 he had alleged appeared to have already been fixed. However, Mr. Hubbard identified a 13 number of additional violations not listed in the complaint. On March 6, 2008, Judge 14 Porter held the Early Neutral Evaluation. Mr. Hubbard stated that he intended to amend 15 the complaint to allege the additional ADA violations identified at the January 31 site 16 inspection. 17

3.

On April 1, Judge Porter held a Settlement Conference. Mr. Chilleen

18 informed the parties that Food 4 Less had fixed all ADA violations identified in the 19 complaint soon after the complaint was filed, as Food 4 Less was in the midst of a 20 remodel. Mr. Hubbard responded that he had noted additional violations during the 21 January 31 site inspection and had also stopped by the store, before coming to the 22 Settlement Conference, and that these violations still existed. Mr. Hubbard again 23 reiterated his intent to amend the complaint. Judge Porter informed Mr. Hubbard that he 24 would need to present a formal motion to amend. 25

4.

On May 2, the parties held the Rule 26(f) conference. Mr. Hubbard again

26 stated that he was going to amend the complaint to allege the additional ADA violations, 27 and asked Food 4 Less and defendant Cypress Creek Co. to stipulate to an amended 28 complaint. Since the alleged violations existed prior to the filing of the complaint, 1 CHILLEEN DECLARATION
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1 defendants informed him that they would not agree to any amendments as plaintiff could 2 have alleged them in the first instance. 3

5.

On May 14, 2008, Judge Porter held a CMC. Judge Porter consulted the

4 parties regarding proposed discovery and motion cut-off dates to which all counsel 5 agreed -- the last day to amend pleadings was set for June 13, 2008. 6

6. 7. 9. 9.

Attached to this Declaration as Exhibit "A" is a true and correct copy of the Attached to this Declaration as Exhibit "B" is a true and correct copy of the Attached to this Declaration as Exhibit "C" is a true and correct copy of the Attached to this Declaration as Exhibit "D" are true and correct copies of

7 Complaint filed in this matter. 8

9 01/17/08 Order issued by Magistrate Judge Porter. 10

11 05/19/08 Order issued by Magistrate Judge Porter. 12

13 Plaintiff's Responses to Defendant's First Set of Interrogatories and First Set of 14 Document Requests. 15

I declare under penalty of perjury under the laws of the United States that the

16 foregoing is true and correct. Executed on July 24, 2008, at Irvine, California. 17 18 19 20 21 22 23 24 25 26 27 28 2 CHILLEEN DECLARATION
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s/Michael J. Chilleeen Michael J. Chilleen

Case No. 07 CV-2301 JLS POR

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1

PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE

I am employed in the aforesaid county, State of California; I am over the age of 18 years and not a party to the within action; my business address is 3161 Michelson Drive, 4 Suite 1000, Irvine, California 92612.
3 5

On the below date, I served: DECLARATION OF MICHAEL J. CHILLEEN 6 IN SUPPORT OF DEFENDANT RALPHS GROCERY COMPANY'S OPPOSITION TO PLAINTIFF'S MOTION TO MODIFY THE SCHEDULING 7 ORDER AND AMEND HIS COMPLAINT with the Clerk of the United States District Court for the Southern District, using the CM/ECF System. The Court's CM/ECF 8 System will send an email notification of the foregoing filing to the following parties and counsel of record who are registered with the Court's CM/ECF System:
9 10 Lynn Hubbard, III

Law Offices of Lynn Hubbard Chico, CA 95926

11 12 Williamsburg Lane 12 Telephone: (530) 895-3252 13

Fax: (530) 894-8244

Robert P. Lowell Lowell & Robbin 707 Broadway, Suite 1800 San Diego, CA 92101-5314 Telephone: (619) 236-1142 Fax: (619) 233-0700 Attorney for Defendant, Cypress Creek Co., L.P.

14 Attorney for Plaintiff, A.J. Oliver 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PROOF OF SERVICE
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(BY ELECTRONIC SERVICE VIA CM/ECF SYSTEM) In accordance with the electronic filing procedures of this Court, service has been effected on the aforesaid party(s) above, whose counsel of record is a registered participant of CM/ECF, via electronic service through the CM/ECF system. (FEDERAL) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed at the office of a member of the bar of this Court and at whose direction the service was made. Executed on July 24, 2008, at Irvine, California. /s/ Michael Chilleen Signature

Case No. 07 CV-2301 JLS POR