Capital One Bank (Usa), N.A. Vs Chase

24CV067744: LEAFY LLC, et al. vs TESLA, INC. 07/18/2024 Hearing on Motion to Compel Arbitration in Department 518 Tentative Ruling - 07/16/2024 Victoria Kolakowski The Motion to Compel Arbitration filed by Tesla, Inc. on 04/16/2024 is Granted. I. Background Leafy LLC, Leafy Lifestyle Inc., Xi Wang, and Li Lok Chung sued Tesla Inc. for alleged violations of the Song-Beverly Consumer Warranty Act. (Compl., Mar. 14, 2024.) Plaintiffs alleged they purchased a 2019 Tesla Model 3 from Tesla with “electrical defects, electronics defects, interior component defects, exterior and body component defects, suspension system defects and other serious nonconformities to warranty.” (Id. ¶¶ 10, 11.) Plaintiffs filed a complaint asserting causes of action for violations of the Song-Beverly Act. (Id. ¶¶ 16–56.) In response, Tesla moved to compel arbitration under the Motor Vehicle Order Agreement’s arbitration clause. (Mot., Apr. 16, 2024.) Tesla produced a copy of the arbitration agreement, which covered “any dispute between you and Tesla, Inc. and its affiliates” and “any dispute arising out of or rela0ng to any aspect of the relationship between you and Tesla.” (Kim Decl. Ex. 1, at 3, Apr. 16, 2024.) Plaintiffs did not oppose. (See Docket.) II. Orders The motion is GRANTED. The action is referred to arbitration pursuant to the terms of the arbitration agreement. The action is stayed pending conclusion of arbitration. The Court sets a status conference for Tuesday, November 19, 2024, at 2:30 p.m. to take status on the arbitration proceedings. The Court vacates the initial case management conference scheduled on July 29, 2024. PLEASE NOTE: 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. To contest a tentative ruling, a party should do the following: First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov and SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV067744: LEAFY LLC, et al. vs TESLA, INC. 07/18/2024 Hearing on Motion to Compel Arbitration in Department 518 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: Department 518 is inviting you to a scheduled ZoomGov meeting. Topic: Department 518's Personal Meeting Room Join ZoomGov Meeting https://alameda-courts-ca-gov.zoomgov.com/j/16054307984 Meeting ID: 160 5430 7984 One tap mobile +16692545252,,16054307984# US (San Jose) +14154494000,,16054307984# US (US Spanish Line) --- Dial by your location • +1 669 254 5252 US (San Jose)

RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 Tentative Ruling - 07/12/2024 Jenna Whitman PARTIES TO APPEAR for trial readiness hearing. The court anticipates starting with motions in limine. The court's tentative rulings on some of those motions are set forth below. The parties should advise opposing counsel at least 24 hours before the hearing which rulings they wish to argue. PLEASE NOTE: THESE TENTATIVE RULINGS HAVE NOW BEEN UPDATED TO ADDRESS DEFENDANTS' MOTION #24 AND PLAINTIFF LENTHE'S MOTIONS. Party No. MOTION TENT. RULING Claims/evidence that defense expert Eddie Cooper spoliated evidence GRANTED IN PART to exclude evidence or argument or or “otherwise did that defense expert Eddie Cooper spoliated evidence, YAM anything improper” (or in __ including by moving any components of the subject DEFS the alternative, to reopen vehicle without permission, at the August 10, 2021 disco to depose Michael inspection. Markushewski (pltf expert) and Larry Cook) RESERVED. Defendants’ contentions that analysis of a defect could involve mechanical or technical detail, the product is complex, or the crash involved extreme force are not a basis to preclude the consumer expectations theory. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 568-569.) At this stage, however, the court lacks sufficient information to determine whether the subject vehicle (“YXZ”) is one about which its users Use of Consumer could form reasonable minimum safety expectations YAM 1 Expectations Test which turns on evidence, if any (e.g., advertisements, owner’s manuals, etc.) re: objective features of the YXZ which are relevant to an evaluation of its safety. (Compare Mansur v. Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1378, with McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1127.) Edwards v. Ford Motor Co. (9th Cir. 2017) 683 F. App'x 610 held that consumers cannot form reasonable expectations regarding roof crush during a rollover based upon a cursory analysis that cited to no California SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 authority and has not been cited for this proposition by any binding authority. Further, the plaintiffs in Edwards had no evidence to prove consumers of the product could have reasonable, minimum safety expectations. (Id. at p. 611.) Counsel should be prepared to discuss whether a 402 hearing is appropriate. DENIED. The motion does not identify specific evidence to be excluded. Plaintiffs have identified potential bases for admission, e.g., for notice of a Other accidents, lawsuits, dangerous condition, provided the evidence is YAM 2 and claims involving ROPS authenticated and relevant. In such a case, a limiting instruction could avert potential prejudice. However, the court should address such issues individually or in clearly delineated categories, and in context. GRANTED IN PART. The court will not permit appeals to jurors’ own personal safety or suggestions that defendants’ conduct places them (or persons close to them) in danger. The fact that individual jurors may Golden Rule and Reptile draw inferences regarding community safety, however, YAM 3 Theory arguments is not a basis to preclude relevant, admissible evidence or argument about the issues in the case. As to “golden rule” arguments, plaintiffs’ counsel agree not to make them. GRANTED IN PART. The court has issued orders regarding the preparation of a joint, proposed juror questionnaire. The court generally orders the parties to Jury Questionnaire, 24- YAM 4 inform each other no later than the end of the trial day hour notice preceding (usually 1:30 p.m.) which witnesses they intend to call the next trial day. DENIED. Defendants have improperly filed an omnibus motion in limine concerning multiple, unrelated issues (Loc. Rule 3.35(e)(3)), some of which Evidence and Arguments are based upon unsubstantiated concerns re: the ethics that are derogatory, of opposing counsel, and others of which duplicate YAM 5 irrelevant, biased, and requests in other motions in limine. Consistent with the unfairly prejudicial court’s obligation to prevent bias (explicit or implicit) in the courtroom, the court will not permit any party to make racist, xenophobic or personally derogatory comments. Nor may attorneys comment on legal issues SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 (such as evidentiary rulings) that are not for the jury. The other issues identified would appear to encompass permissible areas of examination/argument (e.g., that experts or lawyers are paid for their work). Evidence and Argument YAM 6 related to Rhino activities DENIED. GRANTED IN PART. Plaintiffs shall not seek, in To bifurcate / preclude Phase I, evidence concerning any defendant’s financial evidence related to YAM 7 condition or profits gained by virtue of wrongful Yamaha profit or financial conduct. (Civil Code § 3295(a).) condition RESERVED. This motion fails to identify or provide a basis for excluding specific evidence. It is premised upon an incomplete and inaccurate presentation of References to Aftermarket Rondinone’s testimony, which plaintiffs have YAM 8 ROPS Designs demonstrated, combined with the opinions and testimony of other experts, may have adequate foundation, relevance, etc. RESERVED. The motion does not identify specific evidence for exclusion. Plaintiffs’ opposition focuses on Yamaha’s post-sale monitoring practices, which may be relevant and admissible. Plaintiffs do not address compliance with the CPSC, state they wish to Evidence of Purported introduce such evidence. Regardless of relevance, YAM 9 Violations of the Consumer litigation of this issue threatens the undue consumption Product Safety Act (CPSA) of time on collateral issues (including the facts of prior reports and the law governing reporting obligations) in what already promises to be a lengthy trial. (Evid. C. § 352.) DENIED. Even if the suspension is not asserted to be All References to Bucking, defective, evidence re “bucking” is relevant to the YAM 10 Other Criticisms of YXZ’s foreseeability of forward rollovers and resulting injury suspension due to alleged defect in ROPS. DENIED. Provided the exhibits are properly Evidence of Focus Group authenticated and meet the requirements for a business Opinions/Related YAM 11 record exception (which plaintiffs assert they can do Documents through witness Stiver), the exhibits are relevant to the issues in the case and may be admissible to show notice SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 of a dangerous condition (as the assertions by focus group members are not offered for their truth). Unrelated/Unverified DENIED. Defendants fail to identify specific evidence Statements about Yamaha YAM 12 to be excluded or provide evidentiary support. products DENIED. Defendant does not identify specific evidence to be excluded or provide evidentiary support. The URL to the video is nonfunctional. Promotional videos (particularly ones depicting high speed driving Evidence of Advertising, over sand dunes, at dusk and at night) are relevant to YAM 13 Marketing and whether it is foreseeable that consumers would operate Demonstration Videos YXZs in a manner likely to cause rollover and may be used to impeach contrary testimony/argument for defendants. Photos of plaintiffs’ DENIED. The probative value is not outweighed by the attorneys and experts in potential for undue prejudice or consumption of time. YAM 14 subject vehicle; photos ofDefendants may cross examine and put on additional individuals in Nelson’s test evidence as needed to address any differences in height vehicle or positioning of ROPS. GRANTED IN PART. Permissible areas of examination include Carhart’s compensation received for consulting for defendants and (for nonlitigation work) business entities, the percentage of work Carhart performs for such entities as opposed to Evidence re: compensation plaintiffs/individuals, and the amount of compensation Exponent has received he has received in this case, and generally, consulting from clients other than YAM 15 for defendants. If foundation is laid that at least 20 Yamaha or for work other Exponent employees performed work on this unrelated to this case case, the amounts of money billed for their work is also a fair subject of examination. The court RESERVES as to whether plaintiffs may examine a particular witness as to independently acquired information regarding the amount and sources of Exponent resources. Evidence and argument of GRANTED IN PART. Plaintiffs have agreed that drop testing by other expert Michael Markeshewski will not express any YAM 16 manufacturers opinion about whether other manufacturers perform drop testing. Defendants have not identified any other evidence for exclusion. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 GRANTED IN PART. Plaintiffs have not identified any witness who can authenticate the documents depicting and describing the GYTR racing kit or competently testify regarding its contents (including the characteristics of the ROPS depicted, when it became available for purchase, etc.). If plaintiff establishes that a trial witness is competent to address these issues, the court may reconsider. As to alternative standards, Euro Race standards; defendants have not supplied the standards at issue, and YAM 17 GYTR racing kit; and all plaintiffs have not addressed who would authenticate other racing standards such standards. The relevance of “racing” standards depends upon the evidence adduced re: foreseeable uses. The fact that the standards are “foreign” does not implicate the public policy rationales in In re Baycol Prods. Litigation (D. Minn. 2007) 532 F.Supp.2d 1029 and Doe v. Hyland Therapeutics Div. (S.D.N.Y. 1992) 807 F. Supp. 1117, 1129 as we are not concerned with governmental regulations. GRANTED IN PART, as to past medical expenses for treatment furnished by providers outside of the Kaiser Permanente network. (Howell v. Hamilton Meats & Limit evidence of medical Provisions, Inc. (2011) 52 Cal.4th 541.) For the expenses to amounts calculation of future medical expenses, the jury may actually accepted as YAM 18 consider other relevant evidence, including plaintiffs’ payment in full by future eligibility for insurance and the likely costs plaintiffs’ medical (including negotiated rates) thereunder. (Audish v. providers Macias (2024) 102 Cal.App.5th 740, ___; Cuevas v. Contra Coast County (2017) 11 Cal.App.6th 163.) DENIED. Depending upon the facts of the case, the law Testimony of the billed may permit a wider range of evidence than defendants YAM 19 rate for future medical acknowledge. (See Audish, supra, and Cuevas, supra.) expenses DENIED. Initially, plaintiffs represent they will not elicit any opinion from expert Gill that she “has not reviewed any conclusive evidence” that plaintiffs violated any requirements either on the vehicle or in the YAM 20 Testimony of Joellen Gill owner’s manual. Gill’s declaration demonstrates that she possesses the education, training and experience necessary to conduct a Human Factors Safety and Risk Management (Human Factors) Analysis. Engineering SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 and safety (two aspects of this analysis) are generalist professions involving the application of universal scientific principles to all kinds of products and processes; defendants’ argument that expertise in a particular product is required for this analysis lacks merit. Gill also explains in detail the methodology employed by engineering/safety professionals in Human Factors analyses and identifies publications and sources for its principles (neither of which defendants address). In her analysis, Gill applies the identified elements of a risk management program to specific evidence, including what Yamaha knew about the potential for rollovers and did not know about actual rollovers, the types of testing Yamaha did and did not conduct, and Yamaha’s reaction to known rollover incidents, to conclude that Yamaha did not proactively design the YXZ to mitigate risks of serious rollover injuries, or react appropriately to information regarding actual incidents or close calls (including by informing design engineers of those reports). Finally, her conclusion that each of these failures were “an underlying root cause” is not undermined by the defendants’ argument that there may (also) have been other causes. DENIED. Nelson only intends to offer opinions as to foreseeable uses and misuses of the YXZ; the purpose and application of a roll cage; general considerations that should be taken into account when building a roll cage; and the 30-inch roll forward test he conducted on the YXZ 1000R. Testimony of Randy Nelson has the requisite experience to opine on each of YAM 21 Nelson the challenged topics. Defendants ignore his practical experience over many years using, repairing and evaluating off road vehicles, including the YXZ, which qualifies him to opine on foreseeable uses in the real world by consumers of this product. The use of expert testimony on this issue is sometimes permissible. (Soule, supra, 8 Cal.4th at 567, n. 4 [“if the expectations of the product's limited group of ordinary consumers are beyond the lay experience common to all SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 jurors, expert testimony on the limited subject of what the product's actual consumers do expect may be proper”].) This experience is also relevant to his qualification to opine on characteristics that may bear on ROPS design. As for his criticism of the subject ROPS, Nelson has experience designing, building and evaluating ROPS; he is familiar with common principles for designing ROPS adopted by several relevant organizations; and he has investigated over 1000 roll over accidents. He explained the rationale for his opinion that the subject ROPS (single bar on top takes all the load, rather than spreading out; also needs cross bracing) was defective. DENIED. This expert offered opinions as to how the redesigned 2019 YXZ ROPS and UTV Inc.’s ROPS Testimony of David would have performed if subjected to the forces that Rondidone YAM 22 were imparted to the ROPS in the subject rollover. His opinions are also part of the foundation for other experts’ opinions on substantial factor causation. DENIED. The video itself is not hearsay; and to the extent people speak, their statements are offered for the fact that the words were spoken and state of mind of participants. Defendants’ PMK admitted that the film depicts what appears to be a Yamaha-sponsored event. This, combined with the principle that some documents may be self-authenticating, is sufficient for the court to Yamaha Experience determine that the document is what it appears/purports YAM 23 materials to be. Plaintiffs are also entitled to elicit testimony about the video, specifically, the PMK’s failure to inquire within defendants regarding their knowledge of video, which may warrant an instruction re adverse inference concerning defendants’ knowledge of foreseeable (mis)uses, or defendants’ reliance upon the owner’s manual. (Evid. C. § 413) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 GRANTED IN PART. In her declaration, Robinson states that she has been “retained...as an expert to analyze and address the opinions provided by defense expert Joseph Mohorivic.” (Decl. ¶ 1.) Mohorivic has been offered as an expert to testify regarding defendants’ internal risk management, compliance with industry standards, and compliance with CPSA. Robinson’s conclusions rely upon expertise acquired in her role as Commissioner (¶¶ 2-4), including legal expertise, and events which she did not personally witness (¶¶ 5-6, 8-9). Robinson intends to rebut Mohorovic’s opinions as legally unsound (undermined by his failure to consider legal duties owed by Yamaha under both statute and common law (¶ 10) and its failure to comply with such duties (¶¶ 11-13)). To this extent, she is not offering lay opinion. (Evid. C. 800, subds. (a) & (b) [lay opinion must be based upon perceptions of witness]; Fuller v. Dep't of Opinions and declaration Transportation (2019) 38 Cal.App.5th 1034, 1046.) YAM 24 of Marietta Robinson Plaintiffs did not properly disclose her as an expert or move to augment their disclosures and have not explained how these failures were reasonable. (Code Civ. Proc. §§ 2034.300, 2034.610.) To the extent her opinions are based upon personal knowledge, e.g., that “CPSC never evaluated or approved any ANSI-ROHVA standard relating to the strength of the ROPS” (¶ 14), they constitute lay opinion and are admissible. ZAP 1 Evidence or argument GRANTED IN PART. Evidence of adherence to SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 that defendants industry standards may be relevant to risk-benefit adhered to industry theory for strict liability design defect, but only to the standards for the extent such evidence “shed[s] some light on the ROPS appropriate balance of safety risks and benefits” for similar products, e.g., evidence of other manufacturers’ “research or experience in balancing safety, cost, and functionality.” (Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 35-36.) (It may also be relevant to a cause of action for negligent design (id., p. 36) and punitive damages.) Kim held that admissibility turns first on whether the proffered evidence tends to show the design decisions of other manufacturers actually represent a balancing of the appropriate risks and benefits for the subject product category. (Id., p. 37.) The evidence must disclose the “legitimate, independent research and practical experience” of other manufacturers informs the conduct or standard. (Id.) Evidence merely showing Yamaha acted on par with competitors will not suffice. (Id., p. 38.) If defendants satisfy this first test, the evidence remains subject to analysis under Evidence Code section 352. (Id.) Here, defendants provide argument, but no evidence, to meet this specific burden. If defendants believe they can meet this burden, the court may consider setting a 402 hearing. As such evidence is not relevant to consumer expectations test, in the event it is admitted, a limiting instruction will need to be given.[1] GRANTED. The conviction is remote in time, with no evidence of intervening convictions, for a crime no reflecting upon honesty or integrity, diminishing References to Zapper’s its probative value; while its potential to evoke Prior Felony emotional responses unrelated to the merits of the ZAP 2 Convictions and/or case is high. (People v. Beagle (1972) 6 Cal.3d 441, Prior Bad Acts 492 P.2d 1 (1972), abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176; Evid. C. § 352.) ZAP 3 To blur out bumper GRANTED IN PART, solely as to Trump bumper SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 stickers on Zapper’s sticker. Plaintiffs’ political affiliation is irrelevant to vehicle any issue in the case and likely to evoke highly emotional responses in jurors. (Evid. C. § 352.) Prohibit speaking GRANTED (as to all parties). ZAP 4 objections RESERVED. The motion does not identify specific evidence. (1) as to past medical expenses, although amounts actually billed to insurance company by provider are admissible (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541), the parties Evidence of collateral should refrain from disclosing or discussing the ZAP 5 source payments existence of insurance. (2) As to future medical expenses, however, evidence regarding the nature and availability of insurance, and likely amounts billed to insurers, may be relevant. (Audish v. Macias (2024) 102 Cal.App.5th 740, ___; Cuevas v. Contra Coast County (2017) 11 Cal.App.6th 163.) DENIED. Plaintiff does not object to speculative Marcella Morrison testimony, but that the witness’s personal testimony re: Zapper’s ZAP 6 observations are not probative of intoxication. That is alleged drinking on a question for the jury. day of incident RESERVED. Opening statements are not for argument, but to preview the evidence. Reference to Argument or inferring evidence regarding the manner of driving (as in voir dire or opening opposed to inflammatory or argumentative statement that Zapper ZAP 7 characterizations about it) are permissible, as such was allegedly driving evidence is relevant to negligence and, for design recklessly before the defect, foreseeability. With adequate foundation, this incident may include lay opinion. GRANTED IN PART, as to blood serum results. The records reflecting blood alcohol testing results constitute a record of an opinion or conclusion, not Serum Alcohol testing, “a record of an act, condition, or event” (Evid. C. § test results, or other 1561, subd. (a)(3), 1562, 1271; Taggart v. Super Seer ZAP 8 evidence/argument Corp. (1995) 33 Cal.App.4th 1697, 170, superseded related to Zapper by statute on other grounds; People v. Reyes (1974) sobriety 12 Cal.3d 486, 503.) The declaration does describe the mode of preparation such as to indicate the document’s SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 trustworthiness, and it seems unlikely that if this custodian were present in court, they would be competent to testify to facts bearing on the accuracy or trustworthiness of the records. (Evid. C. § 1562.) In re Troy D. (1989) 215 Cal.App.3d 889 was decided under a prior version of section 1561 and provided no analysis re compliance with 1271 (or the later-added provisions mirroring 1271). In this context, defendants’ failure to take steps to obtain and preserve evidence relevant to the reliability of the test results threatens significant prejudice. GRANTED IN PART as to evidence and arguments regarding a violation of Nevada law (NRS § 484C.110, incorporated by 43 CFR 8341.1, subd. (d)), if blood serum test found inadmissible, and in any event absent evidence the test was conducted Evidence and within two hours of driving); 43 CFR 8341.1, subd. instruction on ZAP 9 (f)(1) [which merely prohibits negligent or reckless negligence per se operation of off road vehicle]; and 43 CFR 8365.1-3, subd. (a) [same, and appears to apply to operation of motor vehicles subject to DOT standards].) DENIED as to 43 CFR 8341.1, subd. (f)(3) [operation while under influence of alcohol].) GRANTED, on the condition that plaintiffs do not seek to introduce some portion of their tax returns (Evid. C. § 356) or “open the door.” Defendants have References to Zappers’ no right to refer to the exercise of the privilege ZAP 10 failure to produce tax simply because their economic loss analysis was returns impacted thereby, and they have presented no evidence that plaintiffs failed to produce all relevant, nonprivileged information. TO BE DETERMINED. If the motion is not Undisclosed opinions withdrawn, plaintiffs should promptly file and serve ZAP 11 of defense experts a reply brief. Evidence/reference to GRANTED. Defendant has not explained how such Joe Burton’s criminal evidence could possibly be probative or identified ZAP 12 charges any reason to defer resolving this issue. (Evid. C. § 352.) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 [1] “In substance, jurors should be told that in determining whether the product is defective in design, the burden is on the defendant to prove that the benefits of the challenged design outweigh the risks. Attempting to meet this burden, the defendant has introduced evidence of how other manufacturers designed similar products. This evidence has been received for the limited purpose of evaluating whether the relevant risks and benefits were appropriately balanced. A product can still be defective in design even if the manufacturer acted no differently than any other reasonable manufacturer, and you cannot consider the conduct of other manufacturers for the purpose of showing there was no design defect.” (Conc. Op., J. Dato, 6 Cal.5th, pp. 42-43.) DENIED. This fact is relevant to plaintiff’s injuries other than paralysis and to their LEN 1 Plaintiffs’ failure to wear helmets state of mind. Improper expert opinions of Donald GRANTED. Tandy was not designated as Tandy (re consumer an expert on this topic and is not qualified LEN 2 expectations/marketing materials) to opine upon it. GRANTED, provided plaintiffs do not “open the door.” The identified testimony invades the province of the jury. Under the consumer expectations test, if the jury Lay witness opinions re: Standard of requires help determining the reasonable, LEN 3 Care of ordinary person minimum consumer expectations in a specialized community, expert (not lay) opinion would be appropriate. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567, n. 4.) DENIED. Defendants have explained how some scientific/technical principles References to unrelated tests performed illustrated in these tests potentially apply in LEN 4 on automobiles this case. Any party who believes a [402 hearing] preliminary hearing is warranted should be prepared to address that issue. GRANTED. Cooper was not disclosed as Defendants’ expert Eddie Cooper an expert on this topic, and lacks the LEN 5 opinions re: Statistics requisite education, training and experience to provide expert testimony in SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 epidemiology/statistics. In addition, he does not identify the source of or basis for his methodology, including any basis for concluding that the incidents he is measuring have been reliably reported (or otherwise detected by the parties) and that his data samples are representative. GRANTED. (Evid. Code § 352.) The only evidence is that Lenthe consumed a single beer. There is no evidence Lenthe was intoxicated or impaired, and no expert will express that opinion (or that his consumption of alcohol was a substantial Reference and testimony concerning cause). The suggestion that Lenthe was LEN 6 Hunter Lenthe Alcohol Use acting “recklessly” by riding as a passenger after having consumed a single beer rests solely on a written warning against such conduct, but there is no evidence Lenthe was aware of such warning. GRANTED IN PART, as to statement in Hearsay references to speed in incident Ramsa Ambulance Care Flight Report, LEN 7 reports and medical records only. GRANTED IN PART. The court does not have sufficient information re: Breen’s education, training and experience to determine whether he is qualified to opine as to any topic. A preliminary (402) hearing may be required. Opinions of expert Kevin Breen As to whether Zapper drove recklessly, [402 hearing] causing the accident, Defendants do not LEN 8 dispute that the latter would appear to be an impermissible legal conclusion. (Carlton v. Dep't of Motor Vehicles (1988) 203 Cal.App.3d 1428, 1432.) As to the “Born placements,” Troy Born was examined at deposition regarding his identification of relevant locations for Breen’s son, who apparently marked the locations and conveyed them to Breen, SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 who based his analysis on the coordinates. Even assuming that Troy Born’s testimony regarding the location process obviates any hearsay/Sanchez issue as to his statements to Breen’s son (a significant question), defendants have not addressed how, consistent with Sanchez, Breen can relay the son’s out of court statements to the jury. On this record, the court cannot determine whether this renders Breen’s opinions, or some of them, inadmissible under Sargon. GRANTED. Testimony that Yamaha is a “good company” and generally produces high quality products is not relevant to the issues in the case. To the extent plaintiffs References to Yamaha’s reputation or seek to introduce evidence of prior LEN 9 character incidents, the court understands this to be for purposes of notice (to which the general quality of Yamaha products, or its reputation, are irrelevant). DENIED ON CONDITIONS. Although the additional demonstratives and underlying test information was provided very late in discovery, plaintiffs were offered the opportunity to further depose Breen at defendants’ cost, over one year ago. Defendants shall make the Welsh engineers available immediately for Servo testing data generated by Welsh deposition and Breen for follow up LEN 10 Safety Consulting LLC deposition, with defendants bear plaintiffs’ [402 hearing] costs and fees. The engineers may testify as to foundational facts required by Breen but may not offer expert opinion. Breen may relay to the jury facts testified to by the engineers and admitted at trial. Reasonable minds could differ as to the materiality of the differences between Zapper’s YZX and the testing models, making it a basis for cross examination and SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 rebuttal, not exclusion. The court cannot conclude that the servo tests’ methodology is so unsound that it must be excluded under Sargon. DENIED. Plaintiff ignores circumstantial evidence, considered by Carhart, which if credited could support his conclusion that Lenthe did not fasten his belt correctly: the surrogate test based upon the belt adjustment measurements; testimony that plaintiffs left the campsite in a hurry; and Opinion of Michael Carhart and testing testimony of EMT Kelli Hanifen that she re: did not see a belt on Lenthe or see anyone Hunter Lenthe’s movement inside YXZ remove one. Plaintiff’s criticism of opinion LEN 11 during rollover (2) fails for the same reason (and plaintiff [402 hearing] failed to develop facts or argument regarding the crash test dummy. Plaintiff’s objection to opinion (3) is premised upon the incorrect assertion that defendants experts’ opinions must be excluded because they failed to quantify the time gap. These issues are bases for cross examination and rebuttal, not exclusion. GRANTED IN PART. Mohorovic’s opinions involving compliance with CPSA and reliance upon industry standards do not exceed the disclosure which was the basis for the order granting motion to augment. Compliance with industry standards is relevant if the predicate requirements of Kim v. Toyota Motor Corp. (2018) 6 LEN 12 Testimony of Joseph Mohorovic Cal.5th 2, are met (which can be determined in a preliminary hearing). Plaintiffs’ concern regarding undue consumption of time will not be realized if defendants cannot make the predicate showing. Litigating defendants' compliance with CPSA itself is less relevant and may result in the undue consumption of time. (Evid. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG19034284: Lenthe VS Yamaha Motor Corporation, USA, Inc. 07/15/2024 Pre-Trial Conference in Department 25 C. § 352.) Terrain Analysis MP4 animation DENIED. Plaintiffs have not demonstrated Prepared by Dan Kruger, not Breen. Kruger that Breen is not qualified to lay adequate not designated at expert witness. foundation. That said, if he fails to do so, Animation demonstrative must be a fair and the animation will not be admitted. Given LEN 13 accurate representation of the expert the conditional nature of this ruling, the testimony. animation shall not be shown to the jury Breen cannot establish this, because he did unless and until it has been admitted to not partake in its creation and he lacks the evidence. expertise to confirm its accuracy.

23CV046464: IN THE MATTER OF: IRVINE 07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by USAA General Indemnity Company (Respondent) in Department 20 Tentative Ruling - 07/15/2024 Keith Fong The Motion for Order NOTICE OF MOTION AND MOTION FOR AN ORDER TO COMPEL RESPONSES TO REQUEST FOR DOCUMENT PRODUCTION, ANSWERS TO INTERROGATORIES AND FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SAMANTHA J. ZELEZEN filed by USAA General Indemnity Company on 05/08/2024 is Granted. Respondent USAA General Indemnity Company’s unopposed motion to compel discovery responses is GRANTED. This action involves the defense of a claim for underinsured motorist benefits regarding a motor vehicle accident on January 2, 2020. Respondent USAA General Indemnity Company (“USAA”) filed its Petition on October 3, 2023 regarding a claim by Claimant Mark Irvine (“Irvine”). On February 27, 2023, USAA served Irvine with Form Interrogatories, Special Interrogatories, and Requests for Production of Documents. Irvine, in pro per, did not serve responses. USAA attempted to meet and confer. (Zelezen Dec. ¶¶ 8-10, Exhs. D and E.) USAA re-served the discovery on May 10, 2023. Irvine still did not serve responses, despite further meet and confer by USAA. USAA moves to compel Irvine to provide responses to its Form Interrogatories, Special Interrogatories, and Request for Production of Documents, Set One. USAA also requests monetary sanctions. There is no opposition on file, nor any explanation for Irvine’s failure to respond to either the discovery request or to the discovery motion. USAA Shows Good Cause To Compel Verified Discovery Responses Discovery tests the pleadings and allows a party to determine what her opponent’s contentions are and what facts she relies upon to support her contentions. (Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 276, 281.) As such, a party may be required to respond to discovery to disclose evidentiary facts underlying her claims, affirmative defenses, denials, and whether she makes particular contentions, either as to the facts or as to the possible issues in the case. (Id.) USAA shows good cause to compel responses to its discovery requests. USAA’s discovery seeks information that is discoverable that is relevant to the issues raised in operative complaint is reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., §§ 2017.010, 2017.020.) The Court construes Irvine’s failure to oppose the motion as a concession that the motion is meritorious. (Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410.) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV046464: IN THE MATTER OF: IRVINE 07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by USAA General Indemnity Company (Respondent) in Department 20 USAA’s unopposed motion to compel responses to its Form Interrogatories, Special Interrogatories, and Request for Production of Documents is GRANTED. Irvine is to provide full and complete verified responses, without objections, to USAA’s Set One of Form Interrogatories, Special Interrogatories, and Requests for Production of Documents, by or before August 2, 2024. Although USAA requests monetary sanctions, the moving papers do not indicate how much time was incurred in preparation of the motion, nor counsel’s hourly rate. As such, USAA’s request for monetary sanctions is DENIED. NOTICE TO IRVINE: Claimant Irvine is advised that failure to comply with this Order may result in the imposition of future sanctions, including evidentiary, monetary, or terminating sanctions. (See C.C.P. § 2025.450(h).) If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the Tentative Ruling will become the order of the court. HOW DO I CONTEST A TENTATIVE RULING? THROUGH ECOURT 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 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. BOTH ECOURT AND EMAIL notices are required.

RG20060807: Custode VS Ross Stores, Inc. 07/16/2024 Case Management Conference in Department 23 Tentative Ruling - 07/15/2024 Michael Markman 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)

23CV030139: KANANI, et al. vs GENERAL MOTORS, LLC, A LIMITED LIABILITY COMPANY, et al. 07/15/2024 Hearing on Motion to Compel Further Discovery Responses filed by Dipti Kanani (Plaintiff) + in Department 19 Tentative Ruling - 07/12/2024 Joscelyn Jones On Plaintiff’s Motion to Compel Further Responses to Requests for Production Set One and Requests for Sanctions, COUNSEL ARE TO APPEAR in Department 19, IN PERSON (i.e., not by Zoom), to address the status of this dispute. Plaintiffs sue for violation of the Song Beverly Warranty Act (“the SBW Act”) in connection with their purchase of a 2019 Cadillac Escalade ESV. The Court offers its current tentative opinions about the discovery requests at issue in this motion. Requests Nos. 10 and 31 are directly relevant to Plaintiffs’ claims, and Defendant should serve a further verified response, without objections, and verify that it has produced all responsive documents. Some portion of the documents sought in Requests Nos. 21-28 may potentially be relevant to Plaintiffs’ claim that Defendant willfully violated the SBW Act. (See, e.g., Jensen v. BMW of North America (1995) 35 Cal.App.4th 112, 136.) However, these Requests, as drafted, appear to be significantly overbroad. Plaintiffs’ claims involve the purchase of a new 2019 Cadillac Escalade ESV. Some of these Requests have no time limitation, and some seek all documents since 2015, predating Plaintiffs’ purchase of their vehicle by four years. Prior to the hearing, counsel should meet and confer to discuss whether they can agree on some type of reasonable limitations on these Requests. According to Plaintiffs’ Separate Statement (which is the document the Court typically reviews in ruling on motions to compel further responses), Requests Nos. 34-35 and 37 seek documents pertaining to a 2022 Chevrolet Silverado. The Court does not understand the relevance of those documents, because Plaintiffs’ claims involve a different model and year number. If Requests Nos. 34-35 and 37 sought documents pertaining to a 2019 Cadillac Escalade ESV, Requests Nos. 34-35 would appear to be relevant, but Request No. 37 appears to be overbroad because it is not limited to repairs of the type sought by Plaintiffs.

HG19018129: Barrett Daffin Frappier Treder & Weiss, LLP VS Ferris 07/15/2024 Hearing on Motion to Tax Costs filed by Minh Ngoc Thi Ferris (Defendant) in Department 19 Tentative Ruling - 07/11/2024 Joscelyn Jones The Motion to Tax Costs filed by Minh Ngoc Thi Ferris on 05/14/2024 is Granted. The Motion by Defendant and Cross-Complainant Minh Ngoc Thi Ferris to Strike the Memorandum of Costs filed by Costs filed by Cross-Defendant Lorie Williams is GRANTED. Williams prevailed in two special motions to strike, directed at two different cross-complaints (one filed by Ming Ngoc Thi Ferris, one filed by Michael Ferris.) Williams then filed one Memorandum of Costs that does not identify or distinguish which costs were incurred in defending against which cross-complaint. Williams’ failure to do so makes her Memorandum of Costs defective and inadequate. This case is distinguishable from Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1376, cited by Williams, in which a defendant was sued by several plaintiffs who were represented by a single law firm and pursued a single cause of action against the defendant. Here, Minh Ngoc Thi Ferris and Michael Ferris were represented by separate counsel who filed separate cross-complaints that were the subject of two separate motions to strike. Even if the Court were to find that filing one Memorandum of Costs combining the costs of prevailing against two separate cross-complainants on two separate cross-complaints were procedurally appropriate, the Court cannot determine what costs were incurred by Williams in prevailing on those cross-complaints. The Memorandum of Costs provides no information as to how those costs were incurred, and the declaration of James Pagano apparently refers to exhibits that he did not attach to his declaration. Rather than sequentially numbering his exhibits, Pagano has attached exhibits “JLP-1”, “JLP-2”, “JLP-2A” through “JLP-2H”, and “JLP-3A” through “JLP-3B”, but his declaration (at paragraphs 10(A)-10(B)) refers to documents purportedly attached as Exhibits “JLP-4A” through “JLP-4H”.

RG20070369: Dionicio VS Pacific Agri-Products, INC, a California corpora 07/16/2024 Hearing on Motion - Other Further Class Certification in Department 23 Tentative Ruling - 07/15/2024 Michael Markman Afternoon, 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) The Motion for Class Certification filed by Jose Alonzo Sorto, Robert Shepner, Luis Melchor, Agustin Carmona Dionicio, Mario Ramirez on 05/03/2024 is Granted in Part. BACKGROUND FACTS This is a wage-and-hour class action and PAGA representative action. In the Fourth Amended Complaint (FAC), plaintiffs Agustin Carmona Dionicio, Luis Melchor, Robert Shepner, Jose Alonso Sorto, and Mario Ramriez assert eight causes of action for violations of the Labor Code and Unfair Competition Law. Plaintiff Ramirez, on behalf of the state, seeks to recover civil penalties under the Private Attorneys General Act (PAGA). Pacific Agri-Products, Inc. is a wholesale meat products distributor, with facilities in South San Francisco, the Port of Oakland, and Oakdale (near Modesto). (See FAC, ¶ 17; Riparbelli Decl., ¶ 2.) Defendant has “about 96 non-exempt employees on payroll with 25 of those employees working at South San Francisco (14 warehouse employees, 5 office employees, 6 drivers), 29 in Oakland (13 warehouse employees, 6 office employees, 10 drivers), and 42 in Oakdale (22 warehouse employees, 5 office employees, 15 drivers).” (Riparbelli Decl., ¶ 3.) Plaintiffs allege that defendant’s policy and practice resulted in widespread meal break violations. This court previously certified two meal period subclasses and a derivative claims subclass: Meal Period Subclass No. 1: All current and former non-exempt employees of Pacific Agri-Products, Inc. who worked as a driver and who worked at least one shift greater than five hours between August 6, 2016 and April 30, 2021. Meal Period Subclass No. 2: All current and former non-exempt employees of SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG20070369: Dionicio VS Pacific Agri-Products, INC, a California corpora 07/16/2024 Hearing on Motion - Other Further Class Certification in Department 23 Pacific Agri-Products, Inc. who worked as a driver and who worked at least one shift greater than ten hours between August 6, 2016 and April 30, 2021. Derivative Claims Subclass: All members of the Meal Period Subclasses who were not timely provided wage statements at termination or who were provided wage statements that did not accurately reflect itemized wages under Labor Code §§ 201–203 and § 226. Plaintiff have since amended the complaint to add additional named plaintiff and seek further certification of meal period subclasses for warehouse workers and officer workers. Plaintiff Jose Alonso Sorto was employed as a warehouse worker from approximately January 26, 2017 to March 26, 2017. Plaintiff Robert Shepner was employed as an officer worker from approximately March 2016 to March 2019. LEGAL STANDARD “[W]hen the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” (Code Civ. Proc., § 382.) “The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” (Brinker Rest. Corp. v. Superior Ct. (2012) 53 Cal.4th 1004, 1021.) The community-of-interest requirement embodies three factors: “(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (Ibid.) DISCUSSION Defendant challenges plaintiffs’ showing with respect (1) Sorto’s typicality as a representative plaintiff, (2) Sorto’s and class counsel’s adequacy; and (4) the benefits of certifying the proposed classes. First, Sorto meets the requirement of typicality to represent classes of warehouse workers employed between August 6, 2016 and April 30, 2021. The test of typicality “is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.” (Martinez v. Joe’s Crab Shack Holdings (2014) 231 Cal.App.4th 362, 375.) Plaintiffs submit evidence that he worked shifts of greater than five hours and greater than 10 hours during the relevant period and experienced potential meal break violations. (See Breshears Decl., ¶¶ 16–18.) Defendant contends that a statute of limitations issue renders Sorto atypical of the proposed class. “[E]vidence that a representative is subject to unique defenses is one factor to be SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG20070369: Dionicio VS Pacific Agri-Products, INC, a California corpora 07/16/2024 Hearing on Motion - Other Further Class Certification in Department 23 considered in deciding the propriety of certification,” but “a defendant's raising of unique defenses against a proposed class representative does not automatically render the proposed representative atypical.” (Fireside Bank v. Superior Ct. (2007) 40 Cal.4th 1069, 1090–91.) In this case, the court is not persuaded that any statute of limitations defense is so “factually intensive” or “legally complex” as to “consume an inordinate amount of time and become a major focus of the litigation.” (Id., p. 1092.) Class claims for Sorto may or may not be time barred, but the issue is not specific to Sorto—other class members may be affected as well. Any statute of limitations question based on the date of the filing of the complaint may be determined on a class-wide basis. The question of class certification is “essentially a procedural one that does not ask whether an action is legally or factually meritorious.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th429, 439–40.) While “the important interests of fairness and efficiency sometimes may be served better when class causes of action are screened for legal sufficiency before the matter of certification is decided,” when the “substantive theories and claims of a proposed class suit are alleged to be without legal or factual merit, the interests of fairness and efficiency are furthered when the contention is resolved in the context of a formal pleading (demurrer) or motion (judgment on the pleadings, summary judgment, or summary adjudication) that affords proper notice and employs clear standards.” (Id., p. 440.) In this case, the statute of limitations question is more properly decided on a noticed, pre-trial motion. Second, Sorto is an adequate representative plaintiff. While defendant cites unrebutted evidence that “Dionicio’s managerial responsibilities included management of PacAgri’s rest break and meal period policy and procedures for warehouse workers,”—including Sorto— defendant does not cite evidence that Sorto had responsibility for managing the breaks of any other employees. (See Riparbelli Decl., ¶ 6.) As discussed in this court’s prior order (issued by Judge Seligman), Dionicio is not an adequate representative for warehouse workers because of the potential conflict with other class members. (See, e.g., Lampe v. Queen of the Valley Med. Ctr. (2018) 19 Cal.App.5th 832, 840 [McNair was responsible for scheduling meal breaks for the nurses in her unit which created a conflict between proposed members of the class”].) That conflict, however, may be resolved by adjusting the class definition for the 5-year warehouse class to exclude those whose “responsibilities included management of PacAgri’s rest break and meal period policy and procedures for warehouse workers.” It would defeat the purpose of wage-and-hour class actions if the existence of a manager with a conflict were enough to defeat class certification entirely. Defendant’s challenge to the adequacy of class counsel may be resolved on the same basis. Plaintiffs’ theory of liability for the 10-hour classes, moreover, is based on defendant’s overall policy. In certifying the second meal period subclass, this court noted that defendant’s policy was undisputedly “facially non-compliant because it did not mention a second meal break” and cited expert analysis of pay records showing that “approximately 99.1% of the shifts in excess of ten hours had a potential second meal break violation and no record of premium pay.” (Class Certification Order, entered Dec. 1, 2023, at p. 6.) The court certified the 10-hour subclass based on defendant’s express policy and statistical evidence; thus, there is no inconsistency or conflict in plaintiff’s class theory of liability. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG20070369: Dionicio VS Pacific Agri-Products, INC, a California corpora 07/16/2024 Hearing on Motion - Other Further Class Certification in Department 23 Third, this court has already considered the manageability and superiority of resolving plaintiffs’ meal break violation claims on a class basis. “In general, a class action is proper where it provides small claimants with a method of obtaining redress and when numerous parties suffer injury of insufficient size to warrant individual action.” (Ali v. U.S.A. Cab Ltd. (2009) 176 Cal.App.4th 1333, 1353.) Where plaintiffs’ claims are based on “policy and statistical evidence” and defendant “offers no evidence of waiver,” the court is not persuaded that resolution of the class claims is unmanageable. (Class Certification Order, entered Dec. 1, 2023, at p. 17.) Even if the trial involves evidence on the implementation of policy across warehouses, defendant operates out of only three locations. Similarly, the court is satisfied that the derivate claims are manageable. “Missed-break premium pay” counts as “wages subject to the Labor Code's timely payment and reporting requirements, and it can support section 203 waiting time penalties and section 226 wage statement penalties where the relevant conditions for imposing penalties are met.” (Naranjo v. Spectrum Sec. Servs., Inc. (2022) 13 Cal.5th 93, 125.) Defendant argues that trial would be unmanageable because of its due process right to present evidence regarding its state of mind. While plaintiff’s proposed trial plan is not specific on this point, it estimates a full day of trial spent on determination of derivative violations. Defendant has not provided any basis for the court to assume that more time would be required. ORDER Meal Period Subclasses Nos. 1 & 2 were previously certified and Luis Melchor appointed class representative. The court further certifies the following subclasses: Meal Period Subclass No. 3: All current and former non-exempt employees of Pacific Agri-Products, Inc. who worked as a warehouse worker—except those warehouse workers whose responsibilities included management of PacAgri’s rest break and meal period policy and procedures for warehouse workers—and who worked at least one shift greater than five hours between August 6, 2016 and April 30, 2021. Meal Period Subclass No. 4: All current and former non-exempt employees of Pacific Agri-Products, Inc. who worked as a warehouse worker and who worked at least one shift greater than ten hours between August 6, 2016 and April 30, 2021. Meal Period Subclass No. 5: All current and former non-exempt employees of Pacific Agri-Products, Inc. who worked as an officer worker and who worked at least one shift greater than five hours between August 6, 2016 and April 30, 2021. Meal Period Subclass No. 6: All current and former non-exempt employees of Pacific Agri-Products, Inc. who worked as an officer worker and who worked at least one shift greater than ten hours between August 6, 2016 and April 30, 2021. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG20070369: Dionicio VS Pacific Agri-Products, INC, a California corpora 07/16/2024 Hearing on Motion - Other Further Class Certification in Department 23 Jose Sorto is appointed class representative for Meal Period Subclasses Nos. 3 & 4, and Robert Shepner is appointed class representative for Meal Period Subclasses Nos. 5 & 6. Advocates for Worker Rights LLP is appointed class counsel. The derivative claims subclass is modified to correct a typographical error referring to “wage statements” rather than “wages” applied at termination; the derivative claims subclass applies to all meal period subclasses now certified: Derivative Claims Subclass: All members of the Meal Period Subclasses who were not timely provided wage at termination or who were provided wage statements that did not accurately reflect itemized wages under Labor Code §§ 201-203 and § 226. The court is posting this tentative ruling after the statutory deadline and so anticipates that the parties will appear and that this tentative ruling will help guide the argument. Alternatively, the parties may inform the court that they submit to the tentative ruling at the hearing

22CV007673: CAMPOS vs GRINDSTONE ENTERPRISE LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 07/18/2024 Hearing on Motion for Order Motion for Order Granting Preliminary Approval of Class Action and PAGA Settlement; filed by ANA LILI CAMPOS (Plaintiff) in Department 23 Tentative Ruling - 07/17/2024 Michael Markman The Hearing on Motion for Order Motion for Order Granting Preliminary Approval of Class Action and PAGA Settlement; filed by ANA LILI CAMPOS (Plaintiff) scheduled for 07/18/2024 is continued to 08/08/2024 at 10:00 AM in Department 23 at Rene C. Davidson Courthouse . BACKGROUND This is a wage-and-hour class action and PAGA representative action. Plaintiff Ana Lili Campos and defendant Grindstone Enterprise LLC have agreed to settle the claims for a gross settlement amount of $37,000.00, which includes $12,333.33 in attorney’s fees; up to $4,000.00 in litigation costs and expenses incurred by counsel; an enhancement of $5,000.00 for plaintiff; settlement administration costs of up to $2,000.00, and $2,500.00 in PAGA civil penalties (75% of penalties go to California Labor and Workforce Development Agency (LWDA) and 25% to aggrieved employees). The remaining amount is to be distributed among participating class members in proportion to the number of pay periods worked by each. LEGAL STANDARD To prevent “fraud, collusion or unfairness to the class, the settlement or dismissal of a class action requires court approval.” (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1800.) A court “must determine the settlement is fair, adequate, and reasonable.” (Id. at p. 1801.) “The well-recognized factors that the trial court should consider in evaluating the reasonableness of a class action settlement agreement include ‘the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.’” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 128 [quoting Dunk, supra, at p. 1801].) Similarly, a “trial court should evaluate a PAGA settlement to determine whether it is fair, reasonable, and adequate in view of PAGA’s purposes to remediate present labor law violations, deter future ones, and to maximize enforcement of state labor laws.” (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77 [noting overlap of factors in class action analysis, “including the strength of the plaintiff's case, the risk, the stage of the proceeding, the complexity and likely duration of further litigation, and the settlement amount”].) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV007673: CAMPOS vs GRINDSTONE ENTERPRISE LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 07/18/2024 Hearing on Motion for Order Motion for Order Granting Preliminary Approval of Class Action and PAGA Settlement; filed by ANA LILI CAMPOS (Plaintiff) in Department 23 PRELIMINARY APPROVAL Plaintiffs’ counsel investigated, obtained information from defendant, and analyzed defendants’ wage and hour policies, time and payroll records, and copies of the individual settlement agreements that defendant reached with all putative class members after plaintiff initiated this lawsuit. (See Payne Decl., ¶¶ 17–18, 38.) The parties then participated in an arm’s length mediation. (See id., ¶¶ 19, 39.) Plaintiff includes an adequate Kullar analysis, providing a reasonable estimate of the number of class members, the total estimated possible recovery, and an explanation why the settlement was reasonable in light thereof. (See id., ¶¶ 40–67.) The terms of the settlement and notice procedures appear generally fair, reasonable and adequate. Plaintiff, however, must make the following adjustments before obtaining preliminary approval: First, the parties must revise the PAGA release. (See Payne Decl., Ex. 1 [Settlement Agreement], § 5.3 & Notice § 3.10.) A PAGA representative is acting “acting as a proxy or agent” of the LWDA, and many appellate decisions have clarified that a PAGA claim is brought on behalf of the state, rather than individuals. (Adolph v. Uber Techs., Inc. (2023) 14 Cal. 5th 1104, 1113; see also, e.g., Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 81.) As currently drafted, the Settlement Agreement purports to release claims of “Aggrieved Employees.” This error is unlikely to have practical consequences in the context of settlement, but the court does not want to perpetuate any confusion by approving a settlement that inaccurately implies that PAGA claims are released by anyone other the LWDA through its authorized agents, i.e., the named plaintiff(s). If the intent of the parties is to settle the claims of the LWDA, then the settlement agreement must state expressly that the plaintiff, as proxy and agent of the LWDA, is releasing the claims of the LWDA. Furthermore, the scope of the LWDA’s release must be limited to the scope of PAGA notice letter. (LaCour v. Marshalls of California, LLC, 94 Cal.App. 5th 1172, 1192–97 [notice letter is “objective source of proof for the scope” of PAGA plaintiff’s “authorized enforcement interest”].) The Settlement Agreement suggests that the PAGA release extends to cover claims stated in the operative complaint. Such a release is overbroad. Plaintiff must also provide the court with a copy of the PAGA notice letter sent to the LWDA. Second, the parties must designate to a nonprofit organization or foundation that supports “projects that will benefit the class or similarly situated persons,” or that promotes “the law consistent with the objectives and purposes of the underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil legal services to the indigent” as the recipient of any unclaimed funds. (Code Civ. Proc., § 384, subd. (b).) “It is the policy of the State of California to ensure that the unpaid cash residue and unclaimed or abandoned funds in class action litigation are distributed, to the fullest extent possible, in a manner designed either to further the purposes of the underlying class action or causes of action, or to promote justice for all Californians.” (Id., § 384, subd. (a).) The court is not persuaded that sending the funds to the Unclaimed Property Fund is in line with the state’s policy, as the money is not likely to reach the SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV007673: CAMPOS vs GRINDSTONE ENTERPRISE LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 07/18/2024 Hearing on Motion for Order Motion for Order Granting Preliminary Approval of Class Action and PAGA Settlement; filed by ANA LILI CAMPOS (Plaintiff) in Department 23 relevant employees or an appropriate beneficiary. (See Payne Decl., Ex. 1 [Settlement Agreement], § 4.43 & Notice §§ 3.5, 10.) Counsel must provide section 382.4 declarations, if applicable. Third, section 9 of the proposed notice should include the following language: The pleadings and other records in this litigation may be examined online on the Alameda County Superior Court’s website, known as “eCourt Public Portal,” at https://eportal.alameda.courts.ca.gov. After arriving at the website, click the “Search” tab at the top of the page, then select the Document Downloads link, enter the case number and click “Submit.” Images of every document filed in the case may be viewed at a minimal charge. You may also view images of every document filed in the case free of charge by using one of the computer terminal kiosks available at each court location that has a facility for civil filings. SERVICE AWARD, FEES, & COSTS The court will not rule on a service award for the representative plaintiff, fees, or costs until final approval but provides the following preliminary guidance: The requested service award is within this court’s generally accepted range, but any incentive award must be supported with “quantification of time and effort expended on the litigation, and in the form of reasoned explanation of financial or other risks incurred by the named plaintiffs.” (Clark v. Am. Residential Servs. LLC (2009) 175 Cal.App.4th 785, 807.) The settlement agreement authorizes counsel to seek fees of up to one-third of the gross settlement amount. This court’s benchmark for the percentage of recovery approach is 30%. (See Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 495; Schulz v. Jeppesen Sanderson, Inc. (2018) 27 Cal.App.5th 1167, 1175; Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 557 fn 13; Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 66 fn 11.) A “court approving a settlement that includes a negotiated fee [] is required to decide if the fee negotiated by the parties closely approximates the value of the attorneys’ work.” (Robbins v. Alibrandi, 127 Cal.App.4th 438, 452.) Counsel must address the value of the attorneys’ work, as well as the justification for any deviation from this court’s benchmark, in the fee application. Ten percent of the attorney’s fee award must be kept in the administrator’s trust fund until the completion of the distribution process and court approval of a final accounting. The settlement agreement authorizes reimbursement of litigation costs. Counsel must SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV007673: CAMPOS vs GRINDSTONE ENTERPRISE LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 07/18/2024 Hearing on Motion for Order Motion for Order Granting Preliminary Approval of Class Action and PAGA Settlement; filed by ANA LILI CAMPOS (Plaintiff) in Department 23 provide evidentiary support for the actual costs incurred at the time of final approval. The court’s preference is for Plaintiffs to move for final approval, for attorneys’ fees and costs, and for plaintiff’s enhancement payment in a single motion. ORDER Plaintiffs’ motion for preliminary approval of class action settlement is CONTINUED to August 15, 2024 at 10:00 am in Department 23. At least five (5) court days before the continued hearing, Plaintiff’s counsel must submit a revised proposed order and declaration addressing the issues noted above and suggesting a date, a Thursday at 10:00 am, for the final approval hearing. To the extent the settlement agreement and/or notice are revised, counsel should submit the revised documents as fully executed versions and in redline. HOW DO I CONTEST A TENTATIVE RULING? THROUGH eCOURT 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 (dept23@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.