Related Content
in Alameda County
Ruling
LEAFY LLC, et al. vs TESLA, INC.
Jul 18, 2024 |
Civil Unlimited (Breach of Rental/Lease Contra...) |
24CV067744
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."
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Ruling
Lenthe VS Yamaha Motor Corporation, USA, Inc.
Jul 15, 2024 |
Civil Unlimited (Product Liability (not asbest...) |
RG19034284
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.
Ruling
IN THE MATTER OF: IRVINE
Jul 18, 2024 |
Civil Unlimited (Other Civil Petition) |
23CV046464
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.
Ruling
Custode VS Ross Stores, Inc.
Jul 16, 2024 |
Civil Unlimited (Other Employment Complaint Case) |
RG20060807
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
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Ruling
KANANI, et al. vs GENERAL MOTORS, LLC, A LIMITED LIABILITY CO...
Jul 15, 2024 |
Civil Unlimited (Breach of Rental/Lease Contra...) |
23CV030139
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.
Ruling
Barrett Daffin Frappier Treder & Weiss, LLP VS Ferris
Jul 15, 2024 |
Civil Unlimited (Other Real Property (not emin...) |
HG19018129
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”.
Ruling
Dionicio VS Pacific Agri-Products, INC, a California corpora
Jul 16, 2024 |
Civil Unlimited (Other Employment Complaint Case) |
RG20070369
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:
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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
Ruling
CAMPOS vs GRINDSTONE ENTERPRISE LLC, A CALIFORNIA LIMITED LIA...
Jul 18, 2024 |
Civil Unlimited (Other Employment Complaint Case) |
22CV007673
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.