Turner Vs Reyes

22CV016505: WARD, et al. vs GENERAL ELECTRIC COMPANY, et al. 07/19/2024 Hearing on Motion - Other Mary Kay, Inc.’s Combined Discovery Motion for Protective Order and to Compel Further Written Discovery Responses; filed by Mary Kay Inc. (Defendant) in Department 18 Tentative Ruling - 07/18/2024 Patrick McKinney The Motion re: Defendant Mary Kay Inc.'s Notice of Combined Discovery Motion for Protective Order and to Compel Further Written Discovery Responses filed by Mary Kay Inc. on 07/12/2024 is Granted in Part. Defendant’s motion to compel further responses to special interrogatory 17 and document request 28 is DENIED. The motion for a protective order is GRANTED. I. Mary Kay’s Motion to Compel Further Responses A. Background Mary Kay’s special interrogatory 17 requested that the Wards “state each asbestos-related claim you have signed in anticipation of submission to a bankruptcy trust.” (Pls.’ Resp. to Separate Stmt. 2:4–5, July 15, 2024 (capitalization removed).) The Wards objected on grounds that the response called for work product, noting that, “All claims which have been submitted have been served on all counsel, and all claims which will be submitted will likewise be produced consistent with the Court’s trial setting order.” (Id. 2:7–9 (capitalization removed).) Mary Kay’s document request 28 asked that the Wards produce “[a]ll documents, including but not limited to claim forms, applications, sworn statements, filings and supporting documentation, relating to claims made by you to any product liability bankruptcy trust for alleged asbestos- related injuries of Deborah Ward.” (Id. 3:21–23 (capitalization removed).) The Wards response stated they “w[ould] produce all proof of claims forms submitted to date.” (Id. 4:1 (emphasis added, capitalization removed).) Mary Kay, Inc. moved to compel further responses to these discovery requests. (Mot. 2:7–3:24, July 12, 2024.) Mary Kay argued that signed but submitted claim forms were not protected as attorney work product under Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal. App. 4th 1481; and that even if these claim forms were entitled to qualified protection as witness statements, disclosure is merited because Mary Kay would be unfairly prejudiced. (Mem. Supp. Mot. 4:24–7:4, July 12, 2024.) Deborah and Douglas Ward opposed. (Opp’n Mem., July 15, 2024.) The Wards argued that Volkswagen does not support Mary Kay’s position. (Id. 2:10–3:4.) The Wards further argued Mary Kay did not carry its burden of showing that the unsubmitted claim forms should be disclosed because the witness—Deborah Ward—is available and she was deposed. (Id. 3:4–17.) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV016505: WARD, et al. vs GENERAL ELECTRIC COMPANY, et al. 07/19/2024 Hearing on Motion - Other Mary Kay, Inc.’s Combined Discovery Motion for Protective Order and to Compel Further Written Discovery Responses; filed by Mary Kay Inc. (Defendant) in Department 18 B. Discussion The Court denies the motion to compel further responses from the Wards to these discovery requests. The Court finds that any signed but unsubmitted bankruptcy trust claim forms are protected as attorney work product. Mary Kay’s reliance on Volkswagen is misplaced. Volkswagen only considers whether materials submitted to bankruptcy trusts are discoverable. (See, e.g., 139 Cal. App. 4th at 1458 (“Are documents submitted to bankruptcy trusts by a plaintiff’s attorney in support of claims for compensation for alleged asbestos-related injuries discoverable in similar litigation against another entity? We conclude that most such documents normally are . . . .”).) Even in the Court of Appeal’s discussion of the broad right to discovery relied upon by Mary Kay, the direction to trial courts is clear that production is limited to discovery “of the materials submitted to the bankruptcy trusts.” (Id. at 1497.) The Court also finds that Mary Kay will not be unfairly prejudiced by protecting the confidentiality of these unsubmitted claim forms. II. Mary Kay’s Motion for Protective Order A. Background The Wards’ document request 2 requested that Mary Kay produce “[a]ll documents that reflect the talc content of each and every product reflected in the documents produced in response to Request No. 1. [¶] Request 1 refers to all documents that reflect Debbie Ward’s purchase of Mary Kay cosmetics and body powder between 1993 and 2015.” (Pls.’ Resp. to Separate Stmt. 5:7–10.) The Wards’ document request 25 asked that Mary Kay “[p]roduce all formula sheets for mineral eye-color Quad 2 manufactured between 1994 and 2017.” (Id. 7:14.) To both, Mary Kay objected on grounds that the requests sought confidential or proprietary trade information and noting it “w[ould] produce responsive documents, once the parties enter into and per the terms of the stipulated protective order, a proposed stipulated protective order is attached.” (Accord id. 5:12–18; id. 7:16–21.) Mary Kay moved for a protective order to prevent disclosure of the formulas of certain products outside of this case. (Mot. 4:3–5:3.) Mary Kay argued that the requested formulas were trade secrets and part of its ongoing business for sale of cosmetic products, and that unprotected disclosure could allow its competitors to undercut its business. (Mem. Supp. Mot. 7:6–12:4.) The Wards opposed, arguing that Mary Kay did prove that the formulas of certain products are still undisclosed or proprietary, or that the products using these formulas are still manufactured. (Opp’n Mem. 3:20–4:22.) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV016505: WARD, et al. vs GENERAL ELECTRIC COMPANY, et al. 07/19/2024 Hearing on Motion - Other Mary Kay, Inc.’s Combined Discovery Motion for Protective Order and to Compel Further Written Discovery Responses; filed by Mary Kay Inc. (Defendant) in Department 18 B. Discussion The Court grants the motion for a protective order. The Court finds that the product formulas requested are trade secrets. The Court also finds that Mary Kay’s proposed terms of a protective order are fair and adequate. (See Proposed Protective Order, July 12, 2024.) The Court is unpersuaded by the Wards’ argument that these formulas are not entitled to protection as the formulas are stale: The Wards request formulas for products that were manufactured at least until 2017. III. Orders The motion to compel further responses to special interrogatory 17 and document request 28 is DENIED. The motion for a protective order is GRANTED. Mary Kay must re-submit its proposed protective order (excluding the text on page 1, line 23 through page 2, line 8) no later than five days after the Clerk of the Court serves notice of entry of this order. CONTESTING TENTATIVE ORDERS Notify the Court and all other parties no later than 4:00 p.m. on the day before the scheduled hearing and identify the issues you wish to argue through the following steps: 1. Log into eCourt Public Portal - https://eportal.alameda.courts.ca.gov 2. Case Search 3. Enter the Case Number and select Search 4. Select the Case Name 5. Select the Tentative Rulings Tab 6. Select Click to Contest this Ruling 7. Enter your Name and Reason for Contesting 8. Select Proceed.

23CV047447: OCHOA vs 3M COMPANY, et al. 07/16/2024 Hearing on Motion to Compel Further Discovery Responses filed by Jeffrey Ochoa (Plaintiff) in Department 18 Tentative Ruling - 07/15/2024 Patrick McKinney The Motion to Compel Further Discovery Responses filed by Jeffrey Ochoa on 06/21/2024 is Granted in Part. Plaintiff Jeffrey Ochoa’s (“Plaintiff”) Motion to Compel defendant Kaiser Gypsum Company’s (“Defendant”) Further Responses to Form Interrogatories (“FROG”) is GRANTED IN PART, DENIED IN PART and CONTINUED IN PART, as set forth below. Plaintiff’s Separate Statement refers to FROG that contain apparently defined terms, and the Separate Statement does not contain the defined terms as propounded. Thus, the Moving Separate Statement is not full and complete in and of itself, and the Court could properly deny the Motion to Compel in its entirety on this grounds. Apparently, Plaintiff has taken umbrage with Defendant’s objection that the term “INCIDENT” is vague, ambiguous and overbroad. In asbestos torts litigation, the basic allegations of the Complaint are typically not difficult to understand although complaints rarely if ever allege a particular “incident”. Since the originally propounded definition of “INCIDENT” is not included in the moving Separate Statement, the Court cannot rule on the validity of the initial objections. Plaintiff asserts that he has subsequently propounded a more easy-to-understand definition of INCIDENT, which the Court observes assumes numerous facts not typically in evidence at the discovery stage. Thus, to clarify things with respect to any FROG for which the Court orders further responses below, the Court proposes the following definition for the term INCIDENT: “Plaintiff’s alleged exposures to allegedly asbestos-containing or asbestos-contaminated products, including talc, that form the basis for Plaintiff’s claims in this action.” It is unlikely that Defendant would have any knowledge regarding any other defendant’s allegedly asbestos-containing products or Plaintiff’s alleged exposures thereto. However, it is at least possible that Defendant could have, for example, inspected the automotive service station, if it still exists, where Plaintiff alleges he once worked and was exposed to asbestos-containing dust from automotive friction products. The Court GRANTS Plaintiff’s Request for a Further Response to FROG No. 4.1, although for this FROG the Court further limits the term INCIDENT to Plaintiff’s alleged exposures to Defendant’s asbestos-containing products and not those of third parties. A further Response to FROG No. 4.1 must either list all insurers and insurance policies for the periods during which Plaintiff alleges he was exposed to Defendant’s allegedly asbestos-containing or contaminated products; or to the extent that the information is contained in documents already in Plaintiff’s SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV047447: OCHOA vs 3M COMPANY, et al. 07/16/2024 Hearing on Motion to Compel Further Discovery Responses filed by Jeffrey Ochoa (Plaintiff) in Department 18 possession or equally available to Plaintiff, the Response must identify the specific documents in which Plaintiff may identify all insurers and insurance policies. The Court DENIES Plaintiff’s Request for Further Response to FROG No. 4.2. Plaintiff’s Notice of Motion does not list FROG No. 4.2 as a request for which Plaintiff seeks to compel a further Response. Therefore, Plaintiff may not receive a further Response to FROG No. 4.2. The Court DENIES Plaintiff’s Request for Further Responses to each of FROG Nos. 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 13.1 and 13.2. As the Court reads Defendant’s Responses, they clearly state that, notwithstanding Defendant’s objections, Defendant does not have any responsive information or documents. Nevertheless, to the extent Defendant does have any responsive documents, for example, reports, witness statements, etc., which Defendant asserts are subject to a legitimate attorney-client or attorney work product privilege, the Court ORDERS Defendant to serve Plaintiff with a privilege log containing sufficient factual information for Plaintiff to evaluate the merits of the claim of privilege no later than twenty (20) days after entry of the final Order on this Motion to Compel. (See CCP § 2031.240(c).) With respect to Plaintiff’s Request for a Further Response to FROG No. 15.1, the Court CONTINUES the hearing to Thursday, 8/1/2024 at 3:00 p.m. in Dept. 18 so that Plaintiff and Defendant may submit Separate Statements regarding FROG No. 15.1 and Defendant’s initial Response thereto in a form more conducive for the Court’s review. Specifically, the moving Separate Statement contains Defendant’s long, initial Response to No. 15.1 in a narrow column running more than 110 pages and more than 140 pages in Defendant’s Responsive Separate Statement. It is unduly burdensome for the Court to review such a long Response presented in this manner. The Court ORDERS Plaintiff to file a revised Separate Statement as to FROG No. 15.1 no later than 12:00 noon on Monday, 7/22/2024 and to provide Defendant with a Word or other word processing format copy of the revised Separate Statement by the same deadline. Defendant shall file and serve a Revised Responsive Separate Statement no later than 12:00 noon on Monday, 7/29/2024. The parties shall deliver to the Dept. 18 drop box paper courtesy copies of the revised papers on the dates of filing, or the Court will not consider the revised Separate Statements. The Court GRANTS Plaintiff’s Request for a Further Response to FROG No. 16.1. The Court OVERRULES all of Defendant’s objections except as to legitimate privileges, in which case the Court ORDERS Defendant to provide an appropriate privilege log as set forth above. Defendant’s non-privilege objections lack merit. Further, to the extent that Defendant contends that third parties, other than Plaintiff himself or the named defendants to this action, contributed to Plaintiff’s injuries, Defendant’s Further Response must specifically identify those third parties and provide the requested information or admit that Defendant cannot identify any such third parties. The Court ORDERS Defendant to serve Plaintiff with Verified Further Responses to the extent SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV047447: OCHOA vs 3M COMPANY, et al. 07/16/2024 Hearing on Motion to Compel Further Discovery Responses filed by Jeffrey Ochoa (Plaintiff) in Department 18 ordered above no later than twenty (20) days after the date on which the final Order on this Motion enters. The Court DENIES an award of monetary sanctions to any party in any amount. The Court was unable to locate paper courtesy copies of Defendant’s Opposition papers. (See Local Rule 3.30(c).) Therefore, the Court has not considered any portion of the 800+ page Woo Declaration. The Court requests that in the future parties filing discovery motions for which a Separate Statement is required, that the moving Separate Statement not be presented in the narrow column format used in Plaintiff’s Separate Statement. Plaintiff’s and thus also Defendant’s Responsive Separate Statement are difficult to read expeditiously in the current format, particularly where the Court has been unable to locate paper courtesy copies of Defendant’s Opposition papers. CONTESTING TENTATIVE ORDERS Notify the Court and all other parties no later than 4:00 pm the day before the scheduled hearing and identify the issues you wish to argue through the following steps: 1. Log into eCourt Public Portal - https://eportal.alameda.courts.ca.gov 2. Case Search 3. Enter the Case Number and select Search 4. Select the Case Name 5. Select the Tentative Rulings Tab 6. Select Click to Contest this Ruling 7. Enter your Name and Reason for Contesting 8. Select Proceed.

22CV005828: BENTON, et al. vs CVS HEALTH CORPORATION, et al. 07/16/2024 Hearing on Motion to be Admitted Pro Hac Vice filed by Anthony Swetala (Plaintiff) + in Department 21 Tentative Ruling - 07/02/2024 Noël Wise The Motion to Be Admitted Pro Hac Vice filed by Ralph Milan, Joyce Benton, Melissa Greco, Anthony Swetala on 06/18/2024 is Granted. Pursuant to Government Code section 70617(e)(2), on or before the anniversary of the date of this order Pro Hac Vice Applicant ANTONIO VOZZOLO shall pay a renewal fee of five hundred dollars ($500) for each year that Pro Hac Vice Applicant maintains pro hac vice status in this case. The Court hereby sets a compliance hearing for 08/25/2025 at 01:30 PM in Department 21 at Rene C. Davidson Courthouse. If the renewal fee has been paid at least 10 calendar days before the hearing, no appearance will be required. PLEASE NOTE: This tentative ruling will become the ruling of the court if uncontested by 04:00pm the day before your hearing. If you wish to contest the tentative ruling, then both notify opposing counsel directly and the court at the eCourt portal found on the court’s website: www.alameda.courts.ca.gov. If you have contested the tentative ruling or your tentative ruling reads, “parties to appear,” please use the following link to access your hearing at the appropriate date and time: https://alameda-courts-ca-gov.zoomgov.com/my/department21 . If no party has contested the tentative ruling, then no appearance is necessary.

22CV021879: MANNERS vs CITY OF FREMONT, A CALIFORNIA PUBLIC ENTITY, et al. 07/16/2024 Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) in Department 512 a defaulted and unrepresented corporate party (“Lagorio”) or the unnamed and non-appearing Does Nos. 1-2 ( See CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145 [“A corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record”]). The Court finds that Norcal’s renewed Motion still does not adequately address any of these issues. Norcal claims in the Moving MPA that Plaintiff has a medical lien in the amount of $2,635.76 for treatment of her alleged injuries but presents no evidence that this amount is the sole amount of Plaintiff’s out-of-pocket damages and does not address what, if any, other damages Plaintiff is claiming. Norcal does not present any evidence that it requested or received a CCP § 425.11 Statement of Damages or received verified discovery responses itemizing or setting forth Plaintiffs’ total alleged damages. Second, Norcal has still not adequately addressed City’s cross-claims for indemnity against Norcal and Lagorio. The City cites to Municipal Code §§ 12.30.010, 12.30.200 and 12.30.210. The Court’s reading of these Muni. Code provisions appear to make property owners solely responsible for maintenance and repair of trees on adjacent public property (i.e., “street trees”), landscaping on or abutting public streets, and sidewalks in front of the owner’s lot. These code provisions expressly state that landowners have a duty to members of the public to maintain these elements in a “safe and nondangerous condition,” makes landowners liable to members of the public for failure to perform these duties resulting in injury, and requires landowners to indemnify the City from claims arising out of the landowners’ failure to perform these duties. With respect to adjacent sidewalks, the landowner’s duties include “performance of grinding, removal and replacement of sidewalks, and repair and maintenance of curbs and gutters.” (§ 12.30.210(b).) Norcal asserts that both before and after Plaintiff’s injury, the City performed sidewalk “maintenance/grinding” in the area of Plaintiff’s injury. However, the only evidence presented is the conclusory Mendoza Declaration at ¶¶ 13-15, which contains no foundation for the declarant’s purported personal knowledge of the declared facts. Similarly, although the above-referenced Muni. Code provisions appear to require the landowner to completely indemnify the City for injuries of the type alleged in Plaintiff’s Complaint (a slip/trip and fall caused by “a non-obvious protuberance in the sidewalk ... due to uneven concrete slabs ... further obscured by fallen leaves and other debris from the surrounding vegetation”), Norcal asserts that it is “unlikely to be held 100% liable in this action” without citation to admissible evidence or legal authority for this assertion. Mendoza Dec. ¶ 37 constitutes improper legal argument unsupported by citation to legal authority, rather than admissible evidence. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV021879: MANNERS vs CITY OF FREMONT, A CALIFORNIA PUBLIC ENTITY, et al. 07/16/2024 Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) in Department 512 Finally, Norcal’s current motion does not address its ability to seek a good faith settlement determination as to a defaulted corporate defendant who has not appeared in the action and Does who at present have not been named and have not appeared in the action. In Reply, Norcal’s counsel asserts that they are representing Lagorio. However, it appears likely that Lagorio would first need to move to set aside the default for the limited purpose of seeking a good faith settlement determination in its favor. Similarly, it is likely that the Does would need to appear in this action for the limited purpose of seeking a good faith settlement determination. Wherefore, the Court DENIES Norcal’s Motion for Determination of Good Faith Settlement. CONTESTING TENTATIVE RULINGS PLEASE NOTE: If any party contests the tentative ruling, the hearing on the motion will occur remotely via the court’s own video-conferencing system. Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become the order of the Court unless it is contested before 4:00 PM on the court day preceding the noticed hearing date. To contest a tentative ruling, a party should do the following: First, the party must notify Department 512, by email at Dept512@alameda.courts.ca.gov and copy all counsel of record and self-represented parties. The contesting party must state in the subject line of the email the case name, case number and motion. Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this Ruling" button, enter the party's name and a brief statement of the party's reason for contesting the tentative, and click "Proceed." Parties may appear via videoconference, using the Zoom.com website or application. TO CONNECT TO ZOOM: Join the meeting using the following link: https://www.zoomgov.com/j/16057661931 Join the meeting by Phone: Meeting ID: 160 5766 1931 1 669 254 5252, 16057661931# US (San Jose) 1 669 216 1590, 16057661931# US (San Jose) 833 568 8864 US Toll-free SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV021879: MANNERS vs CITY OF FREMONT, A CALIFORNIA PUBLIC ENTITY, et al. 07/16/2024 Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) in Department 512

23CV025588: WALLACE vs UNION PACIFIC RAILROAD, et al. 07/16/2024 Hearing on Motion for Summary Judgment filed by Union Pacific Railroad (Defendant) in Department 22 Tentative Ruling - 07/12/2024 Brad Seligman The Motion for Summary Judgment filed by Union Pacific Railroad on 04/30/2024 is Granted. Defendant Union Pacific Railroad Company’s (“Defendant”) Motion for Summary Judgment is GRANTED in its entirety because Defendant has met its prima facie burden of showing that Plaintiff Andre Wallace’s (“Plaintiff”) cannot prove the necessary elements of causation and Plaintiff has responded with no evidence to refute this showing. (UMFs 10-13; Civ. Code, § 846.) The Court further notes that Defendant raises recreational immunity and federal preemption as additional bars to Plaintiff’s claims. As Plaintiff has failed to raise triable issues of material fact as to any of these issues, Defendant is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (p)(2).) BACKGROUND This case arises out of a fall that Plaintiff experienced on March 18, 2022, while crossing Defendant’s railroad tracks in the course of attending a birthday party at Rosenblum Cellars in Jack London Square. (UMFs 6-10.) Based on Plaintiff’s deposition testimony, at some point during the party, he left to smoke a cigar in his vehicle and crossed the railroad tracks located at Embarcadero West and Clay Street to get there. (UMF 9.) After smoking his cigar, Plaintiff then walked back to the birthday party at Rosenblum Cellars and therefore again crossed the railroad tracks located at Embarcadero West and Clay Street to get back. (UMF 10.) It was during the crossing back to the birthday party that Plaintiff fell, but Plaintiff does not know where exactly he fell and is unable to identify what object (if any) caused him to fall. (UMFs 11-12.) Although Plaintiff allegedly disputes that he did not know where he landed, at Plaintiff’s deposition testimony indicates that he could not identify the location of his fall. (Wallace Depo. pp. 47:18- 49:24; 141:11-22.) In fact, when Defendant’s counsel asked Plaintiff if he could circle the area where he tripped on a photograph, Plaintiff’s counsel objected that it “calls for speculation.” (Wallace Depo. p. 48:2.) Plaintiff further confirmed: “Yeah, I can’t – I can’t – yeah, I can’t – I don’t know.” (Id. at pp. 47:25-48:1.) Plaintiff also allegedly disputes Defendant’s contention that Plaintiff did not know what caused his fall, but has provided no evidence contrary to his own deposition testimony that establishes his lack of knowledge based on anything more than speculation and subsequently seeing some rocks in the approximate location of where he thinks he might have fallen, when he returned after the incident. (Wallace Depo. pp. 55:9-25; 145:7-20; 184:19-185:4.) LAW A. SUMMARY JUDGMENT – LEGAL STANDARD SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV025588: WALLACE vs UNION PACIFIC RAILROAD, et al. 07/16/2024 Hearing on Motion for Summary Judgment filed by Union Pacific Railroad (Defendant) in Department 22 In moving for summary judgment or summary adjudication, a defendant meets his burden if he shows that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849; Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at p. 849; Code Civ. Proc., § 437c, subd. (p)(2).) The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850; Evid. Code, § 500.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the nonmoving party. (Aguilar, supra, 25 Cal.4th at p. 850.) “The papers are to be construed strictly against the moving party and liberally in favor of the opposing party; any doubts regarding the propriety of summary judgment are to be resolved in favor of the opposing party.” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112.) “An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ [Citation.] Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions' [citation], or mere possibilities [citation].” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525.) “Thus, while the court in determining a motion for summary judgment does not “try” the case, the court is bound to consider the competency of the evidence presented.” (Id. at pp. 525-526.) B. PREMISES LIABILITY / NEGLIGENCE (CAUSATION) “The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) CAUSATION To prove a cause of action for negligence or premises liability, a plaintiff must “introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. (Peralta v. Vons Companies, Inc. (2018) 23 Cal.App.5th 1030, 1035.) “A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Ibid.) “Mere conjecture, however, is ‘legally insufficient to defeat summary judgment.’ [Citation.] The mere possibility that there was a slippery substance on the floor does not establish causation.” (Peralta, supra, 23 Cal.App.5th at p. 1036.) “Absent any evidence that there was a foreign substance on the floor, or some other dangerous condition created by or known to [the SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV025588: WALLACE vs UNION PACIFIC RAILROAD, et al. 07/16/2024 Hearing on Motion for Summary Judgment filed by Union Pacific Railroad (Defendant) in Department 22 defendant], [the plaintiff] cannot sustain their burden of proof.” (Ibid.) “Speculation does not establish causation.” (Ibid.) C. RECREATIONAL USE IMMUNITY (CIV. CODE, § 846) Civil Code section 846 was enacted to encourage property owners to allow the general public to engage in recreational activities free of charge on privately owned property. (Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 567 (PG&E”).) “The statutory goal was to constrain the growing tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability.” (Id. at pp. 567-568.).) The statute accomplishes this goal “by immunizing persons with interests in property from tort liability to recreational users, thus making recreational users responsible for their own safety and eliminating the financial risk that had kept land closed.” (Id. at p. 568.) Under section 846, an owner of any estate or other interest in real property owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give recreational users warning of hazards on the property, unless: (1) the landowner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure or activity; (2) permission to enter for a recreational purpose is granted for a consideration; or (3) the landowner expressly invites rather than merely permits the user to come upon the premises. (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099.) “[T]he Legislature has established two elements as a precondition to immunity: (1) the defendant must be the owner of an ‘estate or any other interest in real property, whether possessory or nonpossessory;’ and (2) the plaintiff's injury must result from the ‘entry or use [of the ‘premises'] for any recreational purpose.’ [Citation.]” (Ornelas, supra, 4 Cal.4th at p. 1100; Civ. Code, § 846.) California courts have given a broad interpretation to the term “recreational purpose” in light of the statute’s non-exclusive list of activities that expressly uses the term “includes activities such as,” implying that similar activities performed for the purpose of pleasure or enjoyment should be included. In Rucker v. WINCAL, LLC (2022) 74 Cal.App.5th 883, the court concluded that “plaintiff, who was jogging as part of her half-marathon training, entered owner's property for a recreational purpose” because her jogging was “intended to refresh the body or mind by diversion, amusement or play.” (Rucker v. WINCAL, LLC (2022) 74 Cal.App.5th 883, 887- 889.) Relevant here, the California Court of Appeal has recognized activities as “recreational” where they are pleasurable, but not essential. (See YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.App.4th 22, 28-29 (“YMCA”).) “Although munching while socializing, shopping, and playing games is not a sporting activity like skiing or swimming, it is a recreational activity which, however pleasurable, is not essential.” (Ibid.) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV025588: WALLACE vs UNION PACIFIC RAILROAD, et al. 07/16/2024 Hearing on Motion for Summary Judgment filed by Union Pacific Railroad (Defendant) in Department 22 Where the material facts regarding the purpose of plaintiff’s activity are not in dispute, however, whether one entered the property for a recreational purpose may be decided as a matter of law. (Ornelas, supra, 4 Cal.4th at p. 1102.) D. FEDERAL PREEMPTION: Federal Railroad Safety Act (49 U.S.C., § 20101, et. seq. & 23 U.S.C., § 130) Under the Federal Railroad Safety Act (“FRSA”) and 23 U.S.C., § 130, federal standards preempt certain claims to the extent that the condition of or dangerous condition(s) that caused the injury are governed by federal regulation. Defendant argues federal standards preempt claims predicated on the design, construction or adequacy of safety crossings and signage. While plaintiff asserted design and construction claims in his complaint, in opposition to this motion, plaintiff abandons such claims. The court finds that any such design and construction claims are preempted. ANALYSIS A. Premises Liability Defendant’s motion for summary judgment is granted because Defendant’s evidence establishes that Plaintiff cannot prove causation and Plaintiff has failed to produce any evidence to the contrary. (UMFs 11-13; Wallace Depo. pp. 47:18-49:24; 55:9-25; 141:11-22; 145:7-20; 184:19- 185:4.) In order to prove his single cause of action for premises liability plaintiff must prove causation, which in turn requires plaintiff to identify the dangerous condition that he asserts caused his injury. Here, where Plaintiff cannot even identify what caused his fall, he has no basis to prove that Defendant’s acts or omissions have anything to do with it. (UMF 12; Wallace Depo. pp. 55:9-25; 145:7-20; 184:19-185:4.) Although Plaintiff speculates that it may have been a rock that caused his fall because he saw rocks in the general area of the crossing when he went back to the location after the incident, Plaintiff did not actually see a rock on the night of the incident because it was too dark for him to see what it was. (Wallace Depo. pp. 184:19-185:4.) Where the object that caused Plaintiff’s injuries cannot be identified, Plaintiff cannot prove that Defendant had any relationship to it, sufficient to establish causation. Plaintiff also does not know the precise location of his fall, which precludes him from proving causation. (Wallace Depo. pp. 47:18-49:24; 141:11-22.) Absent knowledge of the actual location of Plaintiff’s fall, the condition(s) of that location cannot be examined to determine whether any defects existed (that would establish a duty on the part of Defendant in the first place). Absent duty, there can be no breach and hence no breach by Defendant that could cause of Plaintiff’s injuries. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV025588: WALLACE vs UNION PACIFIC RAILROAD, et al. 07/16/2024 Hearing on Motion for Summary Judgment filed by Union Pacific Railroad (Defendant) in Department 22 As Defendant has shown that Plaintiff cannot prove causation, and Plaintiff has provided no evidence to rebut this showing, Defendant is entitled to judgment as a matter of law on Plaintiff’s single cause of action for premises liability regardless of whether recreational immunity applies. (Code Civ. Proc., § 437c, subd. (p)(2).) B. Recreational Use Immunity Defendant is alternatively entitled to summary judgment on the basis of recreational use immunity because Plaintiff was not expressly invited by Defendant to cross its train tracks, was not charged a fee for crossing them, and returning from smoking a cigar in his vehicle to a birthday party where he was socializing, at the time that he sustained his injuries. (UMFs 6-10; 16; Civ. Code, § 846; Ornelas, supra, 4 Cal.4th at p.1099; 1102.) Here, Plaintiff’s smoking his cigar and returning to the birthday party afterwards was an activity “intended to refresh the body or mind by diversion, amusement or play” (Rucker, supra, 74 Cal.App.5th at pp. 887-889) and was “not essential.” (YMCA, supra, 55 Cal.App.4th at p.29.) Although Plaintiff cites to Gordon v. Havasu Palms, Inc. (2001) 93 Cal.App.4th 244 for the proposition that recreational use immunity does not apply to "eating lunch," that case involved a separate set of issues involving assumption of risk and negligence per se based on failure of the Defendant’s air strip to comply with federal aviation standards, which contributed or caused the pilot to crash. In that case, it is also significant that going to lunch was only peripherally mentioned but was not the purpose of the pilot’s emergency landing, making it different from this case where the main purpose of Plaintiff’s crossing of the tracks was to smoke a cigar and return to a birthday party – both for “diversion, amusement or play” (Rucker, supra, 74 Cal.App.5th at pp. 887-889) and both of which were “not essential.” (YMCA, supra, 55 Cal.App.4th at p.29.) Finally, Plaintiff’s Opposition also misstates the holding in Delta Farms Reclamation District v. Superior Court (1983) 33 Cal.3d 699 (“Delta Farms”). Plaintiff’s Opposition contends that Delta Farms precluded “public utilities” from recreational immunity. By contrast, however, Delta Farms states that “public entities” (not “public utilities”) are not protected under Civil Code section 846. Nowhere in the Delta Farms opinion does the term “public utility” appear. As Plaintiff crossed Defendant’s train tracks for a recreational purpose, was not charged a fee and was not expressly invited by Defendant to cross its tracks, Defendant is alternatively entitled to summary judgment on the basis of recreational use immunity. (Code Civ. Proc., § 437c, subd. (p)(2); Civ. Code, § 846.) HOW DO I CONTEST A TENTATIVE RULING? THROUGH eCOURT SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV025588: WALLACE vs UNION PACIFIC RAILROAD, et al. 07/16/2024 Hearing on Motion for Summary Judgment filed by Union Pacific Railroad (Defendant) in Department 22 Notify the Court and all the other parties no later than 4:00 PM one court day before the scheduled hearing, and briefly identify the issues you wish to argue through the following steps: 1. Log into eCourt Public Portal 2. Case Search 3. Enter the Case Number and select “Search” 4. Select the Case Name 5. Select the Tentative Rulings Tab 6. Select “Click to Contest this Ruling” 7. Enter your Name and Reason for Contesting 8. Select “Proceed” BY EMAIL Send an email to the DEPARTMENT CLERK (dept22@alameda.courts.ca.gov) and all the other parties no later than 4:00 PM one court day before the scheduled hearing. This will permit the department clerk to send invitations to counsel to appear remotely. Notice via BOTH eCourt AND email is required. The tentative ruling will become the ruling of the court if no party contests the tentative ruling.

22CV012970: QUINTO vs THE REGENTS OF THE UNIVERSITY OF CALIFORNIA 07/16/2024 Initial Case Management Conference in Department 23 Tentative Ruling - 07/15/2024 Michael Markman Parties to Appear: Join ZoomGov Meeting https://alameda-courts-ca-gov.zoomgov.com/j/16061942036 Meeting ID: 160 6194 2036 --- One tap mobile +16692545252,,16061942036# US (San Jose) +14154494000,,16061942036# US (US Spanish Line)

23CV041788: GOMEZ MAS, et al. vs THE LAPHAM COMPANY, INC 07/19/2024 Hearing on Motion to Compel Interrogatories filed by Jesus Javier Gomez Mas (Plaintiff) in Department 520 Tentative Ruling - 07/15/2024 Julia Spain The Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion filed by Jesus Javier Gomez Mas on 06/12/2024 is Denied. The motion of Plaintiff Jesus Javier Gomez Mas to compel Defendant The Lapham Company, Inc. ("Defendant") to serve verified responses to Plaintiff’s judicial council form interrogatories (set one) and requests for production of documents (set one) (nos. 1-110), pursuant to CCP §§ 2030.290(a) and 2031.300(a), is DENIED WITHOUT PREJUDICE. 1.Defendant’s two law firms are ordered to file and serve a joint declaration indicating which firm will be “lead counsel” – and also making it clear which firm will be responsible for responding to discovery/motions, etc. because both the Court and Plaintiffs are entitled to know. This joint declaration SHALL BE FILED no later than Thursday July 25, 2024. 2.Plaintiffs’ counsel is ordered to serve Hugo Parker LLP (service@hugoparker.com) with the discovery at issue IMMEDIATELY (as of the date of the Order – July 19, 2024) and shall include a Proof of Service indicating the date of service and the discovery served. 3. Defendant shall serve code-compliant discovery responses to the discovery at issue (ordered to be electronically served as of July 19, 2024 on all Defendant’s counsel) no later than Monday August 19, 2024. BACKGROUND This is a breach of the warranty of habitability case. Plaintiffs Jesus Javier Gomez Mas and Jaclyn Adams allege in the operative First Amended Complaint filed on October 19, 2023 that they experienced several serious problems with their apartment in Oakland since they took possession on or about March 1, 2021. Plaintiffs also allege that Defendant has repeatedly failed to make the necessary repairs within a reasonable period when notified of the serious problems. Plaintiffs filed their initial Complaint on August 30, 2023. Plaintiffs filed the First Amended Complaint on October 19, 2023. Plaintiffs did not timely serve the Summons and First Amended Complaint on Defendants. See Rule of Court 3.110(b) (complaint must be served within 60 days of the initial filing date). Plaintiffs finally filed the Proof of Service of Summons on Defendant, pursuant to CCP § 415.20(a), on February 1, 2024. Plaintiffs’ Proof of Service indicates that Defendant was served by substitute service on January 18, 2024. Defendant did not file its Answer to the First Amended Complaint until March 27, 2024. Plaintiffs and Defendant did not request a court order allowing Defendant to file a late Answer. See Rule of Court 3.110(e) (court order required for any extension more than 15 days beyond the initial 30-day deadline). The Court is authorized to impose sanctions on parties and their attorneys for their failure to comply with the Rules of Court. Parties should not have the belief that they are not required to comply SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV041788: GOMEZ MAS, et al. vs THE LAPHAM COMPANY, INC 07/19/2024 Hearing on Motion to Compel Interrogatories filed by Jesus Javier Gomez Mas (Plaintiff) in Department 520 strictly with their statutory obligations merely because opposing counsel has indicated that they do not object. Defendant The Lapham Company, Inc. advises the Court that it is represented by two separate law firms because two of its liability insurers agreed to accept its tender of defense. The Travelers Property Casualty Company of America retained Hugo Parker, LLP, in San Francisco. State National Insurance Company retained Bennett, Gelini & Gelini, in Alameda. The Court notes that attorney Mark Edson of Bennett, Gelini & Gelini represented in the opposition to the motion to compel that Gregory K. Frederico of Hugo Parker LLP is Defendant’s lead counsel, and that Mr. Frederico adamantly denied the characterization of his role. Mr. Frederico states that the two insurers have not had any meetings or discussions regarding the feasibility of having one firm take the lead. There is nothing unusual about the procedural posture in this case. It is common for parties to have more than one firm representing them in cases where more than one insurer is possibly on the risk. ANALYSIS Plaintiff’s motion to compel is denied because he did not properly serve the subject form interrogatories and requests for production of documents. On April 21, 2024, Plaintiff served the discovery requests electronically only on attorney Thomas S. Gelini, of Bennett, Gelini & Gelini, and not the Hugo Parker LLP firm. Attorney Mark Edson said that he did not notice the fact that Plaintiff served only his office with the discovery until after the responses were due. Mr. Edson also advises the Court that his office failed to properly calendar the response date. When Mr. Edson contacted Plaintiff’s attorney to explain what occurred and to ask for an extension of time to respond, Mr. Bornstein indicated that he would only agree if Defendant waived its right to assert objections. See CCP §§ 2030.290(a) and 2031.300(a) (right to object is automatically waived if not timely asserted). Defendant did not consent to this condition. The Court notes that Mr. Edson asks the Court to grant his client relief from the waiver of objections in his opposition papers. The Court is not inclined to grant relief based on counsel’s vague assertion of a calendaring mistake made by his administrative staff. The Court fortunately does not need to evaluate the plausibility of Defendant’s claim of mistake, inadvertence, surprise and/or excusable neglect in any event because it is required to file a noticed motion seeking relief from waiver. See CCP §§ 2030.290(a) and 2031.300(a). Based on its review of the courtesy copies of the parties’ memoranda and declarations, the Court concludes that the motion to compel must be denied because Plaintiff did not properly serve the form interrogatories and requests for production on Defendant. Counsel is advised that he must confirm opposing counsel’s appropriate electronic service address before attempting to serve him or her with any papers electronically. See CCP § 1010.6(b)(3). Plaintiff inexplicably served the discovery on attorney Thomas G. Gelini [sic, Thomas S. Gelini] only by electronic transmission. Plaintiff’s attorney was very much aware that Defendant had two law firms representing it in this case due to counsel’s numerous communications in 2023 and early 2024. Defendant’s Answer to Plaintiff’s First Amended Complaint was in fact prepared and signed by Gregory K. Frederico. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV041788: GOMEZ MAS, et al. vs THE LAPHAM COMPANY, INC 07/19/2024 Hearing on Motion to Compel Interrogatories filed by Jesus Javier Gomez Mas (Plaintiff) in Department 520 The Court notes that the parties are apparently disputing the correct email address for Mr. Frederico. The Court need not resolve this dispute at this juncture because Plaintiff did not attempt to serve Mr. Frederico with the discovery in any manner. NOTICE: This tentative ruling will automatically become the court’s final order on Friday, July 19, 2024, unless, by no later than 4pm on Thursday, July 18, 2024, a party to the action notifies BOTH: 1) the court by emailing Dept520@alameda.courts.ca.gov; AND 2) all opposing counsel or self- represented parties (by telephone or email) that the party is contesting this tentative ruling. The subject line (RE:) of the email must state: “Request for CONTESTED HEARING: [the case name], [number].” Hearings on properly contested matters will occur via online video conferencing which can be accessed via computer or smart phone. If any party notifies the Court that they wish to contest the tentative ruling, the court will send out invitations to the Zoom Video Conference. When a party emails to contest a tentative ruling, the party must identify the specific holding(s) within the ruling they wish to contest via oral argument.

23CV038576: CHURCHILL vs R.E.B. ENTERPRISES III, LLC 07/19/2024 Hearing on Motion for Summary Adjudication filed by Rick Churchill (Plaintiff) in Department 24 Tentative Ruling - 07/17/2024 Rebekah Evenson The Joinder to Motion for Summary Judgment / Adjudication filed by Rick Churchill on 02/22/2024 is Denied. Plaintiff’s Motion for Summary Adjudication as to Defendant’s nine affirmative defenses is DENIED. Plaintiff contends it met its initial burden on summary adjudication based on (1) Defendant’s factually devoid discovery responses, and (2) the declaration of Plaintiff’s expert witness Kenneth Newson. Newson states that he has reviewed Plaintiff’s Complaint, Defendant’s Answer, and Defendant’s responses to Plaintiff’s written discovery and that “[b]ased on my review of the records in connection with the Complaint and my experience as set forth above, I opine to a reasonable degree of scientific probability in the passageway safety community, that there exists no facts which support” Defendant’s nine affirmative defenses. (See Newson’s declaration, paragraphs 6-14.) The only factually devoid discovery responses cited in Plaintiff’s Separate Statement are Defendant’s responses to Form Interrogatory Set Two, No. 17.1, which asked Defendant that, for all responses to Requests for Admissions to which Defendant did not respond with an unqualified admission, Defendant state all facts, witnesses, and documents on which Defendant based its response. Plaintiff’s Requests for Admissions Set Two asked Defendant to admit that Defendant was aware of no facts supporting its affirmative defenses. (See Plaintiff’s Exhibit 4, Requests Nos. 17-25.) Defendant’s response to each of these Requests for Admission was an objection that the Requests were not self-contained, and Defendant refused to provide a substantive response. (Id.) In Defendant’s response to Form Interrogatory No. 17.1 Set Two, when asked what facts supported its response to the Requests for Admission, Defendant stated “[r]esponding party objected to the request”, and it provided no substantive response. (See Plaintiff’s Exhibit 6.) Plaintiff’s opening brief – but not its Separate Statement – also references Defendant’s response to Form Interrogatory Set Two No. 15.1, which asked Defendant for all facts, witnesses, and documents that supported its affirmative defenses. (See Plaintiff’s opening brief at page 2, lines 9-12.) Defendant responded to No. 15.1 with a long list of objections, and Defendant did not provide any substantive response. (See Plaintiff’s Exhibit 6.) A party moving for summary judgment or summary adjudication may, in some cases, rely on the opposing party’s factually devoid discovery responses to meet the moving party’s initial burden of production. That is because factually devoid discovery responses may raise an inference that the opposing party lacks any evidence supporting its claims or defenses. (See Union Bank v. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV038576: CHURCHILL vs R.E.B. ENTERPRISES III, LLC 07/19/2024 Hearing on Motion for Summary Adjudication filed by Rick Churchill (Plaintiff) in Department 24 Superior Court (1995) 31 Cal.App.4th 573, 580 and its progeny, including Bayramoglu v. Nationwide Mortgage LLC (2020) 51 Cal.App.5th 726, 733.) However, the Court cannot infer that an opposing party lacks any evidence where the opposing party’s discovery responses consist solely of objections to the discovery, with no attempt to provide a substantive response. (See Bayramoglu, supra, 51 Cal.App.5th at 733-736; see also Gaggero v. Yura (2003) 108 Cal.App.4th 884, 892-893.) To the extent that the opposing party asserts improper objections to discovery or gives an evasive answer, the propounding party can pursue an order compelling an answer or further answer. (See Bayramoglu, supra, 51 Cal.App.5th at 733.) Having declined to pursue a motion to compel or motion for discovery sanctions, the party propounding discovery may not rely on the improper objection or evasive response as proof that the responding party has no evidence supporting its claims or defenses. (Id. at 733-736.) As for the declaration of Kenneth Newson, his statements that “[b]ased on my review of the records in connection with the Complaint and my experience as set forth above, I opine to a reasonable degree of scientific probability in the passageway safety community, that there exists no facts which support” Defendant’s nine affirmative defenses lack foundation and are inadmissible legal conclusions. Newson fails to adequately explain what specific evidence he reviewed as to each affirmative defense or how he concluded no facts exist that would potentially support each affirmative defense. Defendant’s objections to the Declaration of Aron Movroydis are all OVERRULED. The discovery responses attached to Movroydis’ declaration are Defendant’s discovery responses, verified or not. Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636, cited by Defendant, provides that a party is required to verify its responses to comply with its discovery obligations; it does not hold that the responding party can prevent the propounding party from referring to those responses by failing to verify them. Thomas v. Makita USA Inc. (1986) 181 Cal.App.3d 989 (miscited by Defendant as Thomas v. All American Electric Co.) does not support Defendant’s argument either. In Thomas, summary judgment was reversed not because the responses to the requests for admissions were unverified, but rather because the requests for admissions themselves did not include statutorily required warning language about the effect of failure to respond.