Preview
1 Larry W. Lee (State Bar No. 228175) E-FILED
Kwanporn “Mai” Tulyathan (State Bar No. 316704) 5/5/2020 12:05 PM
2 DIVERSITY LAW GROUP, P.C. Superior Court of California
515 S. Figueroa St., Suite 1250 County of Fresno
3 By: L Peterson, Deputy
Los Angeles, CA 90071
4 Telephone: (213) 488-6555
Facsimile: (213) 488-6554
5
6 Attorneys for Plaintiff and the Class
(Additional Plaintiff’s Counsel on following page)
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
10 FOR THE COUNTY OF FRESNO
11
JANETIRA REED THOM, as an individual ) Case No. 18CECG03190
12 and on behalf of all others similarly situated, )
) Assigned to the Hon. Judge Kimberly Gaab for
13 Plaintiffs, ) all purposes
)
14 vs. ) PLAINTIFF’S OBJECTIONS TO
) DEFENDANT’S EVIDENCE SUBMITTED
15 )
USA WASTE OF CALIFORNIA, INC., a IN SUPPORT OF DEFENDANT’S
) OPPOSITION TO MOTION FOR CLASS
16 Delaware corporation; and DOES 1 through )
50, inclusive, ) CERTIFICATION
17
)
Defendants. ) Date: May 13, 2020
18
_____________________________________ ) Time: 3:30 p.m.
19 Dept.: 503
20
21
22
23
24
25
26
27
28
1
__________________________________________________________________________________________
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S
OPPOSITION TO MOTION FOR CLASS CERTIFICATION
1 ADDITIONAL COUNSEL
2
3 Edward W. Choi (State Bar No. 211334)
LAW OFFICES OF CHOI & ASSOCIATES, APLC
4 515 S. Figueroa St. Suite 1250
5 Los Angeles, CA 90010
Telephone: (213) 381-1515
6 Facsimile: (213) 465-4885
7 Dennis S. Hyun (State Bar No. 224240)
8 HYUN LEGAL, APC
515 S. Figueroa St., Suite 1250
9 Los Angeles, CA 90071
Telephone: (213) 488-6555
10 Facsimile: (213) 488-6554
11
William L. Marder (State Bar No. 170131)
12 POLARIS LAW GROUP, LLP
501 San Benito Street, Suite 200
13 Hollister, California 95023
14 Telephone: 831.531.4214
Facsimile: 831.634.0333
15
Attorneys for Plaintiff and the Class
16
17
18
19
20
21
22
23
24
25
26
27
28
2
__________________________________________________________________________________________
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S
OPPOSITION TO MOTION FOR CLASS CERTIFICATION
1 Plaintiff Janetira Reed Thom (“Plaintiff”) assert the following objections to the evidence submitted
2 by Defendant USA Waste of California, Inc. (“Defendant”) in support of its Opposition to Plaintiff’s
3 Motion for Class Certification.
4 OBJECTIONS TO CLASS MEMBER DECLARATIONS
5 In an effort to defeat certification of Plaintiff’s wage statement claim, Defendant has submitted 9
6 current employee declarations in support of its Opposition to Plaintiff’s Motion to Class Certification—
7 Exhibits AA to II: (1) Robert Trotter, (2) Michael Cuevas, (3) Magelena Rincon, (4) Matthew Mills, (5)
8 Juan Carrillo, (6) Richard Hudgins, (7) William Blaswich, (8) Benjamin Gutierrez, and (9) Ramon Barajs—
9 all of whom are current employees of Defendant. Plaintiff objects to all Declarations on the grounds that all
10 declarants are current employees, and thus said Declarations are subject to bias and lack credibility.
11 It is well-established that declarations of current employees are too prone to bias in the context of
12 class certification. Avilez v. Pinkerton Gov’t Servs., 286 F.R.D. 450, 459 (C.D. Cal. 2012); Quezada v.
13 Schneider Logistics Transloading & Distrib., 2013 WL 1296761 (C.D. Cal. 2013). The reasoning behind
14 this bias is the fear of retaliation in the event that said current employees provide responses that are
15 potentially adverse to the interests of their employers. As the Avilez Court explained, information provided
16 by current employees regarding the employer’s practice are should be given “little weight” for the following
17 reasons:
18 An employee has every incentive to answer “yes” when her employer’s
attorney asks if she likes her employer’s current practice, as an affirmative
19 answer may endear her to current management and a negative answer may
endanger her job, earning her at best the reputation of having a “bad attitude”
20 or “not being a team player” and at worst a retaliatory termination. The
21 incentives to answer untruthfully are even more skewed where, as here, the
employer’s question concerns a practice currently being litigated in a
22 putative class action as an illegal practice.
23 Id. (emphasis in original). Moreover, as the Court explained in Quezada, there is a “heightened potential
24 for coercion where absent class members and the defendant are in an employer-employee relationship.”
25 2013 WL 1296761 at *10.
26 Here, there is inherent bias in the current employee declarations as these employees were asked to
27 speak to one of the issues currently being litigated in this action—Defendant’s failure to list total hours
28 worked whenever overtime adjustment wages are paid on its wage statement. Significantly, the bias is
3
__________________________________________________________________________________________
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S
OPPOSITION TO MOTION FOR CLASS CERTIFICATION
1 “heightened” here as all declarants are current employees, the majority of whom have been employed with
2 Defendant for over 10 years, some of whom have been employed for longer than 30 years. The fear of
3 retaliation is exceptionally higher for these employees, as they risk losing not just a normal day job that can
4 easily be replaced, but their entire livelihood built over such long tenure. Said employees have more to lose
5 and therefore are even more inclined to comply with Defendant’s questions regarding its policies. Given
6 the level of bias in these circumstances, these current employee declarations should be stricken as
7 unreliable.
8 Furthermore, while these declarations provide a boilerplate statement that declarants are providing
9 information of their “own free will and choice,” these declarations do not state whether employees have
10 been adequately informed about this lawsuit or that said declarations were obtained against their interests.
11 As outlined by the Quezada Court, whether the employer “adequately informed the employees about: (1)
12 the details underlying the lawsuit, (2) the nature and purpose of the communications, and (3) the fact that
13 any defense attorneys conducting the communications represent the employer and not the employee” are
14 factors that point to deceptive or coercive pre-certification declarations. 2013 WL 1296761, at *4. Here,
15 there is no indication that Defendant “adequately informed” the declarants about the claims that are
16 involved in the lawsuit, that they are part of a class action, or even the purpose behind obtaining the
17 declarations. In fact, these declarations make no mention of the lawsuit whatsoever. Nor do these
18 declarations state that declarants were even advised of their rights, or that their declarations would be used
19 against their interests—specifically, to limit their right to monetary relief as potential class members. Thus,
20 under these circumstances indicating that Defendant and its attorneys did not obtain conflict waivers, these
declarations should be stricken as unreliable at this juncture. See Quezada, at *5-*6 (granting the plaintiff’s
21
motion to strike 106 declarations obtained by defendant, finding said declarations to be coercive and
22
misleading where, among other reasons, the employer failed to inform employees that declarations were
23
obtained in adversarial context and that it could be used to limit employees’ right to relief); see also
24
Richardson v. Interstate Hotels & Resorts, Inc., 2018 WL 1258192, at *7-*8 (N.D. Cal. 2018) (striking 14
25
current employee declarations on the grounds that defense counsel did not obtain conflict waivers).
26
More importantly, as an additional ground to strike the declarations, Defendant fails to attach any of
27
the wage statements it relied upon in obtaining the declarations from these employees. While the
28
4
__________________________________________________________________________________________
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S
OPPOSITION TO MOTION FOR CLASS CERTIFICATION
1 declarations purport to attach certain wage statements of the declarants, none of the wage statements were
2 produced as part of Defendant’s Notice of Lodgment of Exhibits. Thus, as the declarations are based on
3 information purportedly obtained from the wage statements, the Court must strike the entirety of these
4 declarations based on lack of foundation under Cal. Evid. Code § 403, hearsay under Cal. Evid. Code § 405,
5 lack of personal knowledge under Cal. Evid. Code § 702, and violates the Secondary Evidence Rule under
6 Cal. Evid. Code § 1523.
7 Based on the foregoing reasons, the declarations should be stricken by the Court.
8 Declarations from Current Employees Plaintiff’s Objections
(Def.’s Exhs. AA to II)
9
Declarations of Robert Trotter, Michael (a) Declarations from current employees are
10 Cuevas, Magdelena Rincon, Matthew Mills, unreliable, prone to bias and lack
Juan Carrillo, Richard Hudgins, William credibility. See Avilez, supra, 286 F.R.D. at
11 Blaswich, Benjamin Gutierrez, and Ramon 459; Quezada, supra, 2013 WL 1296761;
Barajs Richardson, supra, 2018 WL 1258192, at
12
*7-*8.
13 (b) Lacks foundation (Evid. Code § 403)
(c) Lack of personal knowledge (Evid. Code §
14 702
(d) Hearsay (Evid. Code § 405)
15 (e) Secondary Evidence Rule (Evid. Code §
1523)
16
17
18 OBJECTIONS TO THE DECLARATION OF LAURIE ROBE
19 Robe Declaration (Def.’s Exh. B) Plaintiff’s Objections
20 ¶ 4, pg. 1, lns. 14-17 (a) Relevance (Evid. Code § 402)
“Since 2014, each USA Waste location in
21 California has had the discretion to determine
22 whether to pay Safety Bonuses to employees at
that location. Each location offering a Safety
23 Bonus is able to determine for itself what the
criteria are for paying the Safety Bonuses and
24 the amount to be paid for Safety Bonuses.”
25
¶ 7, pg. 2, pgs. 2-4 (a) Lacks foundation (Evid. Code § 403)
26 “Straight time pay, holiday premiums for time (b) Lacks personal knowledge (Evid. Code §
worked and pay for non-productive work time 702)
27 were all included in calculating the regular rate (c) Conclusory, improper legal argument (In
28 of pay for purposes of overtime pay, and re Marriage of Heggie, 99 Cal. App. 4th
overtime was paid on those categories of pay.” 28, 30, fn. 3 (2002). Defendant’s
5
__________________________________________________________________________________________
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S
OPPOSITION TO MOTION FOR CLASS CERTIFICATION
1 argument that it includes certain types of
pay in its calculation of the regular rate
2 for purposes of overtime pay is an
3 improper legal argument.
4 ¶ 8, pg. 2, ln. 5 to pg. 4, ln. 15 (a) Relevance (Evid. Code § 402)
“A large portion of USA Waste’s employees in
5 California have been represented by unions
6 since August 2014. More than 1,500 non-
exempt USA Waste employees in California
7 have been represented by nine different unions
during that time period. Since 2014, USA
8 Waste’s unionized workforce in California has
9 been subject to the following collective
bargaining agreements (“CBAs”) with the
10 following effective dates: … True and correct
copies of the foregoing CBAs are attached to
11 the Notice of Lodgment of Exhibits as Exhibits
12 C through W respectively.
13 ¶ 8; Exhibits C through W (a) Relevance (Evid. Code § 402)
(b) Lacks foundation (Evid. Code § 403)
14
(c) Lacks personal knowledge (Evid. Code §
15 702)
16 ¶ 9, pg. 4, (a) Relevance (Evid. Code § 402)
“The foregoing CBAs set forth the terms and (b) Secondary Evidence Rule (Evid. Code §
17
conditions of employment for the employees 1523)
18 covered by the specific CBA, contain (c) Lacks foundation (Evid. Code § 403)
provisions regarding the wages, hours of work, (d) Lacks personal knowledge (Evid. Code §
19 working conditions of the employees, payment 702)
of premium wages for overtime hours of work (e) Conclusory, improper legal argument (In
20
and have regular wage rates that are at least re Marriage of Heggie, 99 Cal. App. 4th
21 30% higher than the applicable state minimum 28, 30, fn. 3 (2002). Whether any of the
wage rate at any given time.” CBAs govern, and which terms and
22 provisions apply, are improper legal
arguments.
23
24
25 OBJECTIONS TO THE DECLARATION OF FRANK GUERCIO
26 Guercio Declaration (Def.’s Exh. X) Plaintiff’s Objections
27 ¶ 2, pg. 1, lns. 11-14 (a) Relevance (Evid. Code § 402)
“Drivers employed by USA Waste in California (b) Conclusory, improper legal argument (In
28 operate the following general categories of re Marriage of Heggie, 99 Cal. App. 4th
6
__________________________________________________________________________________________
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S
OPPOSITION TO MOTION FOR CLASS CERTIFICATION
1 over-the-road vehicles: residential and 28, 30, fn. 3 (2002). Whether the trucks
commercial trucks, roll-off trucks, tractor- can be generalized and classified as
2 trailer trucks, stinger/scout trucks, bin delivery “commercial” such that it falls under 13
3 trucks and Port-o-Let trucks. USA Waste has C.C.R. § 1201 is an improper legal
had more than 1,300 trucks from these argument.
4 categories in operation in California since
August 2014.”
5
6 ¶ 3, pg. 1, lns. 15-19 (a) Relevance (Evid. Code § 402)
“The residential and commercial trucks are the (b) Conclusory
7 large, garbage trucks that are commonly seen (c) Lacks foundation (Evid. Code § 403)
on the roads. Drivers on residential routes pick (d) Conclusory, improper legal argument (In
8 up garbage, recycling and yard waste at private re Marriage of Heggie, 99 Cal. App. 4th
9 residences. Drivers on commercial routes pick 28, 30, fn. 3 (2002). Whether the trucks
up garbage and recycling for commercial can be generalized and classified as
10 customers, such as office buildings, apartment “commercial” such that it falls under 13
complexes and other commercial buildings.” C.C.R. § 1201 is an improper legal
11 argument.
12
¶ 3, pg. 1, lns. 19-22 (a) Relevance (Evid. Code § 402)
13 “With the exception noted below, residential (b) Not appropriate subject of lay opinion
and commercial trucks all have a gross (Evid. Code § 800)
14
vehicular weight (“GVW”) ranging from (c) Lacks expert qualifications (Evid. Code §
15 26,640 to 79,500 pounds and have 2 or more 720)
axles. These residential and commercial trucks (d) Lacks foundation (Evid. Code § 403)
16 are required to be registered with the California (e) Conclusory, improper legal argument (In
Department of Motor Vehicles (“DMV”) as re Marriage of Heggie, 99 Cal. App. 4th
17
commercial vehicles…” 28, 30, fn. 3 (2002). Whether the trucks
18 can be generalized and classified as
“commercial” such that it falls under 13
19 C.C.R. § 1201 is an improper legal
argument.
20
21
¶ 3, pg. 1, lns. 22-23 (a) Relevance (Evid. Code § 402)
22 “… USA Waste’s California motor carrier
permit number is displayed on the side of these
23 trucks.”
24
¶ 4, pg. 1, lns. 24-25 (a) Relevance (Evid. Code § 402)
25 “There is also a category of smaller residential (b) Not appropriate subject of lay opinion
trucks with a GVW less than 26,000 pounds. (Evid. Code § 800)
26 These trucks have 2 axles.” (c) Lacks expert qualifications (Evid. Code §
720)
27
(d) Lacks foundation (Evid. Code § 403)
28
¶ 5, pg. 1, lns. 26-28 7 (a) Relevance (Evid. Code § 402)
__________________________________________________________________________________________
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S
OPPOSITION TO MOTION FOR CLASS CERTIFICATION
1 “Roll-off trucks are used to pick up, transport
and empty large “roll-off” bins which range in
2 size from 10 to 50 cubic yards. Roll-off bins
3 are typically used for hauling debris from
construction sites and large residential clean-up
4 and remodeling projects.”
5 ¶ 5, pg. 1, ln. 28 to pg. 2, ln. 2 (a) Relevance (Evid. Code § 402)
6 “Roll-off trucks have a GVW ranging from (b) Not appropriate subject of lay opinion
33,000 to 89,000 pounds and have 3 or more (Evid. Code § 800)
7 axles. Roll-off trucks are required to be (c) Lacks expert qualifications (Evid. Code §
registered with the DMW as commercial 720)
8 vehicles…” (d) Lacks foundation (Evid. Code § 403)
9 (e) Conclusory, improper legal argument (In
re Marriage of Heggie, 99 Cal. App. 4th
10 28, 30, fn. 3 (2002). Whether the trucks
can be generalized and classified as
11 “commercial” such that it falls under 13
12 C.C.R. § 1201 is an improper legal
argument.
13
¶ 5, pg. 2, lns. 2-3 (a) Relevance (Evid. Code § 402)
14
“… USA Waste’s California motor carrier
15 permit number is displayed on the side of these
trucks.”
16
¶ 6, pg. 2, lns. 4-7 (a) Relevance (Evid. Code § 402)
17
“Tractor-trailer trucks are tractor-trailer (b) Lacks foundation (Evid. Code § 403)
18 combinations that are typically used to deliver
large loads of waste from transfer stations to
19 landfills. In many locations in California,
residential and commercial trucks dump their
20
loads at transfer stations. The waste is then
21 loaded into large trailers to be hauled to the
landfills for unloading.”
22
¶ 6, pg. 2, lns. 7-9 (a) Relevance (Evid. Code § 402)
23
“Tractor-trailers have a GVW in excess of (b) Not appropriate subject of lay opinion
24 26,001 pounds and are in excess of 40 feet in (Evid. Code § 800)
length. Tractor-trailers are required to be (c) Lacks expert qualifications (Evid. Code §
25 registered with the DMV as commercial 720)
vehicles...” (d) Lacks foundation (Evid. Code § 403)
26
(e) Conclusory, improper legal argument (In
27 re Marriage of Heggie, 99 Cal. App. 4th
28, 30, fn. 3 (2002). Whether the trucks
28 can be generalized and classified as
8
__________________________________________________________________________________________
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S
OPPOSITION TO MOTION FOR CLASS CERTIFICATION
1 “commercial” such that it falls under 13
C.C.R. § 1201 is an improper legal
2 argument.
3
¶ 6, pg. 2, lns. 9-10 (a) Relevance (Evid. Code § 402)
4 “… USA Waste’s California motor carrier
permit number is displayed on the side of these
5 trucks.”
6
¶ 7, pg. 2, lns. 11-15 (a) Relevance (Evid. Code § 402)
7 “Drivers who operate residential, commercial (b) Lacks foundation (Evid. Code § 403)
and roll-off trucks exceeding 26,000 pounds are (c) Conclusory, improper legal argument (In
8
required to have a commercial class B or class re Marriage of Heggie, 99 Cal. App. 4th
9 A driver’s license. Small residential vehicles 28, 30, fn. 3 (2002). Whether the trucks
less than 26,000 pounds do not require a can be generalized and classified as
10 commercial license but can be operated by “commercial” such that it falls under 13
someone with a Class C license. Drivers who C.C.R. § 1201 is an improper legal
11
operate tractor/trailer trucks are required to argument.
12 have a class A commercial driver’s license.”
13 ¶ 7, pg. 2, lns. 15-20 (d) Relevance (Evid. Code § 402)
“Drivers of all of these vehicles are required to (e) Lacks foundation (Evid. Code § 403)
14
perform pre- and post-trip inspections of the (f) Conclusory, improper legal argument (In
15 vehicles, as enforced by the California re Marriage of Heggie, 99 Cal. App. 4th
Highway Patrol (“CHP”). The drivers with 28, 30, fn. 3 (2002). Whether the
16 commercial class A and B driver’s licenses are vehicles can be generalized and classified
subject to California hours of service as “commercial” such that it falls under
17
limitations. These drivers are required to 13 C.C.R. § 1201 is an improper legal
18 maintain a log when they record their hours of argument.
service, including drive time and on-duty time,
19 on the days they work 12 or more hours. These
logs are turned in. These logs are subject to
20
inspection by the CHP.”
21
¶ 8, pg. 2, lns. 21-22 (a) Relevance (Evid. Code § 402)
22 “Stinger/scout trucks are trucks that have (b) Not appropriate subject of lay opinion
hydraulic forks mounted on the rear of the truck (Evid. Code § 800)
23
to pick up garbage and recycling bins ranging (c) Lacks expert qualifications (Evid. Code §
24 from 1 to 6 cubic yards.” 720)
(d) Lacks foundation (Evid. Code § 403)
25
¶ 8, pg. 2, lns. 22-25 (a) Relevance (Evid. Code § 402)
26
“Stinger/scout trucks pick up bins on (g) Conclusory, improper legal argument (In
27 commercial routes in areas that the large re Marriage of Heggie, 99 Cal. App. 4th
residential trucks cannot access. The 28, 30, fn. 3 (2002). Whether the trucks
28 stinger/scout trucks haul the bins out into the can be generalized and classified as
9
__________________________________________________________________________________________
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S
OPPOSITION TO MOTION FOR CLASS CERTIFICATION
1 street or other area where the commercial “commercial” such that it falls under 13
trucks unload the bins, and then the C.C.R. § 1201 is an improper legal
2 stinger/scout truck returns the bins to their argument.
3 storage areas.”
4 ¶ 8, pg. 2, lns. 25-27 (a) Relevance (Evid. Code § 402)
“Stinger/scout trucks have a GVW ranging (b) Not appropriate subject of lay opinion
5 from 6,000 to 37,500 pounds and have 2 axles. (Evid. Code § 800)
6 This class of vehicle includes ½ ton pickup (c) Lacks expert qualifications (Evid. Code §
trucks that have been modified for use as 720)
7 stinger/scout trucks.” (d) Lacks foundation (Evid. Code § 403)
8
¶ 9, pg. 2, ln. 28 to pg. 3, ln. 3 (a) Relevance (Evid. Code § 402)
9 “Bin delivery trucks are trucks which deliver (b) Conclusory, improper legal argument (In
residential garbage, recycling and yard waste re Marriage of Heggie, 99 Cal. App. 4th
10 bins to residential customers when customers 28, 30, fn. 3 (2002)
begin or modify service and pick up those bins
11
when customers down-size or discontinue
12 service. Bin delivery trucks are also used to
deliver and pick up bins of 1 to 6 cubic yards to
13 residential and commercial customers.”
14
¶ 9, pg. 3, lns. 3-5 (a) Relevance (Evid. Code § 402)
15 “Bin delivery trucks have a GVW ranging from (b) Not appropriate subject of lay opinion
9,000 to 80,000 pounds and have 2 or 3 axles. (Evid. Code § 800)
16 The heavier of these are tractor/trailer (c) Lacks expert qualifications (Evid. Code §
combinations exceeding 40 feet.” 720)
17
(d) Lacks foundation (Evid. Code § 403)
18
¶ 10, pg. 3, lns. 6-7 (e) Relevance (Evid. Code § 402)
19 “Port-o-Let trucks are used to deliver, retrieve (f) Not appropriate subject of lay opinion
and service porta-potties. These trucks have a (Evid. Code § 800)
20
GVW of 15,000 to 35,000 pounds and have 2 (g) Lacks expert qualifications (Evid. Code §
21 axles.” 720)
(h) Lacks foundation (Evid. Code § 403)
22
¶ 11, pg. 3, lns. 8-11 (a) Relevance (Evid. Code § 402)
23
“As for registration, stinger/scout trucks, bin (b) Not appropriate subject of lay opinion
24 delivery trucks and Port-o-Let trucks with a (Evid. Code § 800)
GVW over 10,000 pounds and trucks which are (c) Lacks expert qualifications (Evid. Code §
25 based on pickup trucks exceed 8,001 pounds 720)
unladen and/or 11,499 GVW are registered (d) Lacks foundation (Evid. Code § 403)
26
with the DMV as commercial vehicles.” (e) Lacks personal knowledge (Evid. Code §
27 702)
28 ¶ 11, pg. 3, lns. 11-12 (a) Relevance (Evid. Code § 402)
10
__________________________________________________________________________________________
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S
OPPOSITION TO MOTION FOR CLASS CERTIFICATION
1 “All stinger/scout trucks, bin delivery trucks (b) Lacks foundation (Evid. Code § 403)
and Port-o-Let trucks display USA Waste’s (c) Lacks personal knowledge (Evid. Code §
2 California motor carrier permit number 702)
3 regardless of the GVW”
4 ¶ 12, pg. 3, lns. 13-16 (a) Relevance (Evid. Code § 402)
“Drivers of stinger/scout trucks, bin delivery (b) Not appropriate subject of lay opinion
5 trucks and Port-o-Let trucks greater than 26,000 (Evid. Code § 800)
6 pounds GVW are required to have at least a (c) Lacks expert qualifications (Evid. Code §
commercial Class B license. If the vehicle is 720)
7 under 26,000 pounds a regular Class C license (d) Lacks foundation (Evid. Code § 403)
is enough, but drivers often have commercial (e) Lacks personal knowledge (Evid. Code §
8 class B licenses.” 702)
9
¶ 12, pg. 3, lns. 13-18 (a) Relevance (Evid. Code § 402)
10 “Drivers of stinger/scout trucks, bin delivery (b) Not appropriate subject of lay opinion
trucks and Port-o-Let trucks are required to (Evid. Code § 800)
11
perform pre- and post-trip inspections of the (c) Lacks expert qualifications (Evid. Code §
12 vehicles, as enforced by the CHP, if the GVW 720)
exceeds 26,000 pounds.” (d) Lacks foundation (Evid. Code § 403)
13 (e) Lacks personal knowledge (Evid. Code §
702)
14
15 ¶ 12, pg. 3, lns. 18-20 (a) Relevance (Evid. Code § 402)
“USA Waste treats all drivers with commercial (b) Lacks foundation (Evid. Code § 403)
16 licenses as subject to the California hours of (c) Lacks personal knowledge (Evid. Code §
service limits, including the requirement to fill 702)
17
out hours of service logs, regardless of the
18 vehicle driven.”
¶ 13, pg. 3, ln. 21 (a) Relevance (Evid. Code § 402)
19 “Drivers record which vehicle(s) they drive on (b) Lacks foundation (Evid. Code § 403)
a daily basis.” (c) Lacks personal knowledge (Evid. Code §
20
702)
21
22
OBJECTIONS TO THE DECLARATION OF ROBERT OBERG
23
Oberg Declaration (Def.’s Exh. Y) Plaintiff’s Objections
24
¶ 2, pg. 1, lns. 8-9 (a) Relevance (Evid. Code § 402)
25 “BDC is a special waste division of USA (b) Conclusory, improper legal argument (In
Waste. BDC is one of the USA Waste re Marriage of Heggie, 99 Cal. App. 4th
26
operations that in California that hauls 28, 30, fn. 3 (2002). Whether waste can
27 hazardous waste.” be classified as “hazardous” is an
improper legal argument.
28
11
__________________________________________________________________________________________
PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S
OPPOSITION TO MOTION FOR CLASS CERTIFICATION
1 ¶ 2, pg. 1, lns. 9-13 (a) Relevance (Evid. Code § 402)
“The types of hazardous waste hauled by BDC (c) Conclusory, improper legal argument (In
2 is typically construction debris containing lead re Marriage of Heggie, 99 Cal. App. 4th
3 or asbestos, contaminated soil containing PCB 28, 30, fn. 3 (2002). Whether waste can
and chemically treated wood. These are all be classified as “hazardous” is an
4 classified as hazardous waste under California’s improper legal argument.
hazardous waste regulations. This material (b) Not appropriate subject of lay opinion
5 may come from commercial construction sites (Evid. Code § 800)
6 or private residences.” (c) Lacks expert qualifications (Evid. Code §
720)
7 (d) Lacks foundation (Evid. Code § 403)
8 ¶ 3, pg. 1, ln. 14 (a) Relevance (Evid. Code § 402)
9 “All of the drivers at BDC haul hazardous (d) Conclusory, improper legal argument (In
waste. The frequency BDC drivers haul re Marriage of Heggie, 99 Cal. App. 4th
10 hazardous waste varies.” 28, 30, fn. 3 (2002). Whether waste can
be classified as “hazardous” is an
11 improper legal argument.
12 (b) Lacks foundation (Evid. Code § 403)
13 ¶ 3, pg. 1, lns. 15-18 (a) Relevance (Evid. Code § 402)
“Approximately 20% of the loads hauled by (e) Conclusory, improper legal argument (In
14
BDC contain hazardous waste. BDC drivers re Marriage of Heggie, 99 Cal. App. 4th
15 will typically haul 3-5 loads of hazardous waste 28, 30, fn. 3 (2002). Whether waste can
a week, which could mean 4 loads of hazardous be classified as “hazardous” is an
16 waste in a single day and none the rest of the improper legal argument.
week, or the loads may split up over the course (b) Lacks foundation (Evid. Code § 403)
17
of the week.” (c) Not appropriate subject of lay opinion
18 (Evid. Code § 800)
(d) Lacks expert qualifications (Evid. Code §
19 720)
20
¶ 3, pg. 1, ln. 18 (a) Relevance (Evid. Code § 402)
21 “The frequency depends on customer needs.”
22 ¶ 3, pg. 1, lns. 18-21 (a) Relevance (Evid. Code § 402)
“Some hazard
Preview
1 Larry W. Lee (State Bar No. 228175) E-FILED Kwanporn “Mai” Tulyathan (State Bar No. 316704) 5/5/2020 12:05 PM 2 DIVERSITY LAW GROUP, P.C. Superior Court of California 515 S. Figueroa St., Suite 1250 County of Fresno 3 By: L Peterson, Deputy Los Angeles, CA 90071 4 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 5 6 Attorneys for Plaintiff and the Class (Additional Plaintiff’s Counsel on following page) 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 10 FOR THE COUNTY OF FRESNO 11 JANETIRA REED THOM, as an individual ) Case No. 18CECG03190 12 and on behalf of all others similarly situated, ) ) Assigned to the Hon. Judge Kimberly Gaab for 13 Plaintiffs, ) all purposes ) 14 vs. ) PLAINTIFF’S OBJECTIONS TO ) DEFENDANT’S EVIDENCE SUBMITTED 15 ) USA WASTE OF CALIFORNIA, INC., a IN SUPPORT OF DEFENDANT’S ) OPPOSITION TO MOTION FOR CLASS 16 Delaware corporation; and DOES 1 through ) 50, inclusive, ) CERTIFICATION 17 ) Defendants. ) Date: May 13, 2020 18 _____________________________________ ) Time: 3:30 p.m. 19 Dept.: 503 20 21 22 23 24 25 26 27 28 1 __________________________________________________________________________________________ PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION 1 ADDITIONAL COUNSEL 2 3 Edward W. Choi (State Bar No. 211334) LAW OFFICES OF CHOI & ASSOCIATES, APLC 4 515 S. Figueroa St. Suite 1250 5 Los Angeles, CA 90010 Telephone: (213) 381-1515 6 Facsimile: (213) 465-4885 7 Dennis S. Hyun (State Bar No. 224240) 8 HYUN LEGAL, APC 515 S. Figueroa St., Suite 1250 9 Los Angeles, CA 90071 Telephone: (213) 488-6555 10 Facsimile: (213) 488-6554 11 William L. Marder (State Bar No. 170131) 12 POLARIS LAW GROUP, LLP 501 San Benito Street, Suite 200 13 Hollister, California 95023 14 Telephone: 831.531.4214 Facsimile: 831.634.0333 15 Attorneys for Plaintiff and the Class 16 17 18 19 20 21 22 23 24 25 26 27 28 2 __________________________________________________________________________________________ PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION 1 Plaintiff Janetira Reed Thom (“Plaintiff”) assert the following objections to the evidence submitted 2 by Defendant USA Waste of California, Inc. (“Defendant”) in support of its Opposition to Plaintiff’s 3 Motion for Class Certification. 4 OBJECTIONS TO CLASS MEMBER DECLARATIONS 5 In an effort to defeat certification of Plaintiff’s wage statement claim, Defendant has submitted 9 6 current employee declarations in support of its Opposition to Plaintiff’s Motion to Class Certification— 7 Exhibits AA to II: (1) Robert Trotter, (2) Michael Cuevas, (3) Magelena Rincon, (4) Matthew Mills, (5) 8 Juan Carrillo, (6) Richard Hudgins, (7) William Blaswich, (8) Benjamin Gutierrez, and (9) Ramon Barajs— 9 all of whom are current employees of Defendant. Plaintiff objects to all Declarations on the grounds that all 10 declarants are current employees, and thus said Declarations are subject to bias and lack credibility. 11 It is well-established that declarations of current employees are too prone to bias in the context of 12 class certification. Avilez v. Pinkerton Gov’t Servs., 286 F.R.D. 450, 459 (C.D. Cal. 2012); Quezada v. 13 Schneider Logistics Transloading & Distrib., 2013 WL 1296761 (C.D. Cal. 2013). The reasoning behind 14 this bias is the fear of retaliation in the event that said current employees provide responses that are 15 potentially adverse to the interests of their employers. As the Avilez Court explained, information provided 16 by current employees regarding the employer’s practice are should be given “little weight” for the following 17 reasons: 18 An employee has every incentive to answer “yes” when her employer’s attorney asks if she likes her employer’s current practice, as an affirmative 19 answer may endear her to current management and a negative answer may endanger her job, earning her at best the reputation of having a “bad attitude” 20 or “not being a team player” and at worst a retaliatory termination. The 21 incentives to answer untruthfully are even more skewed where, as here, the employer’s question concerns a practice currently being litigated in a 22 putative class action as an illegal practice. 23 Id. (emphasis in original). Moreover, as the Court explained in Quezada, there is a “heightened potential 24 for coercion where absent class members and the defendant are in an employer-employee relationship.” 25 2013 WL 1296761 at *10. 26 Here, there is inherent bias in the current employee declarations as these employees were asked to 27 speak to one of the issues currently being litigated in this action—Defendant’s failure to list total hours 28 worked whenever overtime adjustment wages are paid on its wage statement. Significantly, the bias is 3 __________________________________________________________________________________________ PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION 1 “heightened” here as all declarants are current employees, the majority of whom have been employed with 2 Defendant for over 10 years, some of whom have been employed for longer than 30 years. The fear of 3 retaliation is exceptionally higher for these employees, as they risk losing not just a normal day job that can 4 easily be replaced, but their entire livelihood built over such long tenure. Said employees have more to lose 5 and therefore are even more inclined to comply with Defendant’s questions regarding its policies. Given 6 the level of bias in these circumstances, these current employee declarations should be stricken as 7 unreliable. 8 Furthermore, while these declarations provide a boilerplate statement that declarants are providing 9 information of their “own free will and choice,” these declarations do not state whether employees have 10 been adequately informed about this lawsuit or that said declarations were obtained against their interests. 11 As outlined by the Quezada Court, whether the employer “adequately informed the employees about: (1) 12 the details underlying the lawsuit, (2) the nature and purpose of the communications, and (3) the fact that 13 any defense attorneys conducting the communications represent the employer and not the employee” are 14 factors that point to deceptive or coercive pre-certification declarations. 2013 WL 1296761, at *4. Here, 15 there is no indication that Defendant “adequately informed” the declarants about the claims that are 16 involved in the lawsuit, that they are part of a class action, or even the purpose behind obtaining the 17 declarations. In fact, these declarations make no mention of the lawsuit whatsoever. Nor do these 18 declarations state that declarants were even advised of their rights, or that their declarations would be used 19 against their interests—specifically, to limit their right to monetary relief as potential class members. Thus, 20 under these circumstances indicating that Defendant and its attorneys did not obtain conflict waivers, these declarations should be stricken as unreliable at this juncture. See Quezada, at *5-*6 (granting the plaintiff’s 21 motion to strike 106 declarations obtained by defendant, finding said declarations to be coercive and 22 misleading where, among other reasons, the employer failed to inform employees that declarations were 23 obtained in adversarial context and that it could be used to limit employees’ right to relief); see also 24 Richardson v. Interstate Hotels & Resorts, Inc., 2018 WL 1258192, at *7-*8 (N.D. Cal. 2018) (striking 14 25 current employee declarations on the grounds that defense counsel did not obtain conflict waivers). 26 More importantly, as an additional ground to strike the declarations, Defendant fails to attach any of 27 the wage statements it relied upon in obtaining the declarations from these employees. While the 28 4 __________________________________________________________________________________________ PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION 1 declarations purport to attach certain wage statements of the declarants, none of the wage statements were 2 produced as part of Defendant’s Notice of Lodgment of Exhibits. Thus, as the declarations are based on 3 information purportedly obtained from the wage statements, the Court must strike the entirety of these 4 declarations based on lack of foundation under Cal. Evid. Code § 403, hearsay under Cal. Evid. Code § 405, 5 lack of personal knowledge under Cal. Evid. Code § 702, and violates the Secondary Evidence Rule under 6 Cal. Evid. Code § 1523. 7 Based on the foregoing reasons, the declarations should be stricken by the Court. 8 Declarations from Current Employees Plaintiff’s Objections (Def.’s Exhs. AA to II) 9 Declarations of Robert Trotter, Michael (a) Declarations from current employees are 10 Cuevas, Magdelena Rincon, Matthew Mills, unreliable, prone to bias and lack Juan Carrillo, Richard Hudgins, William credibility. See Avilez, supra, 286 F.R.D. at 11 Blaswich, Benjamin Gutierrez, and Ramon 459; Quezada, supra, 2013 WL 1296761; Barajs Richardson, supra, 2018 WL 1258192, at 12 *7-*8. 13 (b) Lacks foundation (Evid. Code § 403) (c) Lack of personal knowledge (Evid. Code § 14 702 (d) Hearsay (Evid. Code § 405) 15 (e) Secondary Evidence Rule (Evid. Code § 1523) 16 17 18 OBJECTIONS TO THE DECLARATION OF LAURIE ROBE 19 Robe Declaration (Def.’s Exh. B) Plaintiff’s Objections 20 ¶ 4, pg. 1, lns. 14-17 (a) Relevance (Evid. Code § 402) “Since 2014, each USA Waste location in 21 California has had the discretion to determine 22 whether to pay Safety Bonuses to employees at that location. Each location offering a Safety 23 Bonus is able to determine for itself what the criteria are for paying the Safety Bonuses and 24 the amount to be paid for Safety Bonuses.” 25 ¶ 7, pg. 2, pgs. 2-4 (a) Lacks foundation (Evid. Code § 403) 26 “Straight time pay, holiday premiums for time (b) Lacks personal knowledge (Evid. Code § worked and pay for non-productive work time 702) 27 were all included in calculating the regular rate (c) Conclusory, improper legal argument (In 28 of pay for purposes of overtime pay, and re Marriage of Heggie, 99 Cal. App. 4th overtime was paid on those categories of pay.” 28, 30, fn. 3 (2002). Defendant’s 5 __________________________________________________________________________________________ PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION 1 argument that it includes certain types of pay in its calculation of the regular rate 2 for purposes of overtime pay is an 3 improper legal argument. 4 ¶ 8, pg. 2, ln. 5 to pg. 4, ln. 15 (a) Relevance (Evid. Code § 402) “A large portion of USA Waste’s employees in 5 California have been represented by unions 6 since August 2014. More than 1,500 non- exempt USA Waste employees in California 7 have been represented by nine different unions during that time period. Since 2014, USA 8 Waste’s unionized workforce in California has 9 been subject to the following collective bargaining agreements (“CBAs”) with the 10 following effective dates: … True and correct copies of the foregoing CBAs are attached to 11 the Notice of Lodgment of Exhibits as Exhibits 12 C through W respectively. 13 ¶ 8; Exhibits C through W (a) Relevance (Evid. Code § 402) (b) Lacks foundation (Evid. Code § 403) 14 (c) Lacks personal knowledge (Evid. Code § 15 702) 16 ¶ 9, pg. 4, (a) Relevance (Evid. Code § 402) “The foregoing CBAs set forth the terms and (b) Secondary Evidence Rule (Evid. Code § 17 conditions of employment for the employees 1523) 18 covered by the specific CBA, contain (c) Lacks foundation (Evid. Code § 403) provisions regarding the wages, hours of work, (d) Lacks personal knowledge (Evid. Code § 19 working conditions of the employees, payment 702) of premium wages for overtime hours of work (e) Conclusory, improper legal argument (In 20 and have regular wage rates that are at least re Marriage of Heggie, 99 Cal. App. 4th 21 30% higher than the applicable state minimum 28, 30, fn. 3 (2002). Whether any of the wage rate at any given time.” CBAs govern, and which terms and 22 provisions apply, are improper legal arguments. 23 24 25 OBJECTIONS TO THE DECLARATION OF FRANK GUERCIO 26 Guercio Declaration (Def.’s Exh. X) Plaintiff’s Objections 27 ¶ 2, pg. 1, lns. 11-14 (a) Relevance (Evid. Code § 402) “Drivers employed by USA Waste in California (b) Conclusory, improper legal argument (In 28 operate the following general categories of re Marriage of Heggie, 99 Cal. App. 4th 6 __________________________________________________________________________________________ PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION 1 over-the-road vehicles: residential and 28, 30, fn. 3 (2002). Whether the trucks commercial trucks, roll-off trucks, tractor- can be generalized and classified as 2 trailer trucks, stinger/scout trucks, bin delivery “commercial” such that it falls under 13 3 trucks and Port-o-Let trucks. USA Waste has C.C.R. § 1201 is an improper legal had more than 1,300 trucks from these argument. 4 categories in operation in California since August 2014.” 5 6 ¶ 3, pg. 1, lns. 15-19 (a) Relevance (Evid. Code § 402) “The residential and commercial trucks are the (b) Conclusory 7 large, garbage trucks that are commonly seen (c) Lacks foundation (Evid. Code § 403) on the roads. Drivers on residential routes pick (d) Conclusory, improper legal argument (In 8 up garbage, recycling and yard waste at private re Marriage of Heggie, 99 Cal. App. 4th 9 residences. Drivers on commercial routes pick 28, 30, fn. 3 (2002). Whether the trucks up garbage and recycling for commercial can be generalized and classified as 10 customers, such as office buildings, apartment “commercial” such that it falls under 13 complexes and other commercial buildings.” C.C.R. § 1201 is an improper legal 11 argument. 12 ¶ 3, pg. 1, lns. 19-22 (a) Relevance (Evid. Code § 402) 13 “With the exception noted below, residential (b) Not appropriate subject of lay opinion and commercial trucks all have a gross (Evid. Code § 800) 14 vehicular weight (“GVW”) ranging from (c) Lacks expert qualifications (Evid. Code § 15 26,640 to 79,500 pounds and have 2 or more 720) axles. These residential and commercial trucks (d) Lacks foundation (Evid. Code § 403) 16 are required to be registered with the California (e) Conclusory, improper legal argument (In Department of Motor Vehicles (“DMV”) as re Marriage of Heggie, 99 Cal. App. 4th 17 commercial vehicles…” 28, 30, fn. 3 (2002). Whether the trucks 18 can be generalized and classified as “commercial” such that it falls under 13 19 C.C.R. § 1201 is an improper legal argument. 20 21 ¶ 3, pg. 1, lns. 22-23 (a) Relevance (Evid. Code § 402) 22 “… USA Waste’s California motor carrier permit number is displayed on the side of these 23 trucks.” 24 ¶ 4, pg. 1, lns. 24-25 (a) Relevance (Evid. Code § 402) 25 “There is also a category of smaller residential (b) Not appropriate subject of lay opinion trucks with a GVW less than 26,000 pounds. (Evid. Code § 800) 26 These trucks have 2 axles.” (c) Lacks expert qualifications (Evid. Code § 720) 27 (d) Lacks foundation (Evid. Code § 403) 28 ¶ 5, pg. 1, lns. 26-28 7 (a) Relevance (Evid. Code § 402) __________________________________________________________________________________________ PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION 1 “Roll-off trucks are used to pick up, transport and empty large “roll-off” bins which range in 2 size from 10 to 50 cubic yards. Roll-off bins 3 are typically used for hauling debris from construction sites and large residential clean-up 4 and remodeling projects.” 5 ¶ 5, pg. 1, ln. 28 to pg. 2, ln. 2 (a) Relevance (Evid. Code § 402) 6 “Roll-off trucks have a GVW ranging from (b) Not appropriate subject of lay opinion 33,000 to 89,000 pounds and have 3 or more (Evid. Code § 800) 7 axles. Roll-off trucks are required to be (c) Lacks expert qualifications (Evid. Code § registered with the DMW as commercial 720) 8 vehicles…” (d) Lacks foundation (Evid. Code § 403) 9 (e) Conclusory, improper legal argument (In re Marriage of Heggie, 99 Cal. App. 4th 10 28, 30, fn. 3 (2002). Whether the trucks can be generalized and classified as 11 “commercial” such that it falls under 13 12 C.C.R. § 1201 is an improper legal argument. 13 ¶ 5, pg. 2, lns. 2-3 (a) Relevance (Evid. Code § 402) 14 “… USA Waste’s California motor carrier 15 permit number is displayed on the side of these trucks.” 16 ¶ 6, pg. 2, lns. 4-7 (a) Relevance (Evid. Code § 402) 17 “Tractor-trailer trucks are tractor-trailer (b) Lacks foundation (Evid. Code § 403) 18 combinations that are typically used to deliver large loads of waste from transfer stations to 19 landfills. In many locations in California, residential and commercial trucks dump their 20 loads at transfer stations. The waste is then 21 loaded into large trailers to be hauled to the landfills for unloading.” 22 ¶ 6, pg. 2, lns. 7-9 (a) Relevance (Evid. Code § 402) 23 “Tractor-trailers have a GVW in excess of (b) Not appropriate subject of lay opinion 24 26,001 pounds and are in excess of 40 feet in (Evid. Code § 800) length. Tractor-trailers are required to be (c) Lacks expert qualifications (Evid. Code § 25 registered with the DMV as commercial 720) vehicles...” (d) Lacks foundation (Evid. Code § 403) 26 (e) Conclusory, improper legal argument (In 27 re Marriage of Heggie, 99 Cal. App. 4th 28, 30, fn. 3 (2002). Whether the trucks 28 can be generalized and classified as 8 __________________________________________________________________________________________ PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION 1 “commercial” such that it falls under 13 C.C.R. § 1201 is an improper legal 2 argument. 3 ¶ 6, pg. 2, lns. 9-10 (a) Relevance (Evid. Code § 402) 4 “… USA Waste’s California motor carrier permit number is displayed on the side of these 5 trucks.” 6 ¶ 7, pg. 2, lns. 11-15 (a) Relevance (Evid. Code § 402) 7 “Drivers who operate residential, commercial (b) Lacks foundation (Evid. Code § 403) and roll-off trucks exceeding 26,000 pounds are (c) Conclusory, improper legal argument (In 8 required to have a commercial class B or class re Marriage of Heggie, 99 Cal. App. 4th 9 A driver’s license. Small residential vehicles 28, 30, fn. 3 (2002). Whether the trucks less than 26,000 pounds do not require a can be generalized and classified as 10 commercial license but can be operated by “commercial” such that it falls under 13 someone with a Class C license. Drivers who C.C.R. § 1201 is an improper legal 11 operate tractor/trailer trucks are required to argument. 12 have a class A commercial driver’s license.” 13 ¶ 7, pg. 2, lns. 15-20 (d) Relevance (Evid. Code § 402) “Drivers of all of these vehicles are required to (e) Lacks foundation (Evid. Code § 403) 14 perform pre- and post-trip inspections of the (f) Conclusory, improper legal argument (In 15 vehicles, as enforced by the California re Marriage of Heggie, 99 Cal. App. 4th Highway Patrol (“CHP”). The drivers with 28, 30, fn. 3 (2002). Whether the 16 commercial class A and B driver’s licenses are vehicles can be generalized and classified subject to California hours of service as “commercial” such that it falls under 17 limitations. These drivers are required to 13 C.C.R. § 1201 is an improper legal 18 maintain a log when they record their hours of argument. service, including drive time and on-duty time, 19 on the days they work 12 or more hours. These logs are turned in. These logs are subject to 20 inspection by the CHP.” 21 ¶ 8, pg. 2, lns. 21-22 (a) Relevance (Evid. Code § 402) 22 “Stinger/scout trucks are trucks that have (b) Not appropriate subject of lay opinion hydraulic forks mounted on the rear of the truck (Evid. Code § 800) 23 to pick up garbage and recycling bins ranging (c) Lacks expert qualifications (Evid. Code § 24 from 1 to 6 cubic yards.” 720) (d) Lacks foundation (Evid. Code § 403) 25 ¶ 8, pg. 2, lns. 22-25 (a) Relevance (Evid. Code § 402) 26 “Stinger/scout trucks pick up bins on (g) Conclusory, improper legal argument (In 27 commercial routes in areas that the large re Marriage of Heggie, 99 Cal. App. 4th residential trucks cannot access. The 28, 30, fn. 3 (2002). Whether the trucks 28 stinger/scout trucks haul the bins out into the can be generalized and classified as 9 __________________________________________________________________________________________ PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION 1 street or other area where the commercial “commercial” such that it falls under 13 trucks unload the bins, and then the C.C.R. § 1201 is an improper legal 2 stinger/scout truck returns the bins to their argument. 3 storage areas.” 4 ¶ 8, pg. 2, lns. 25-27 (a) Relevance (Evid. Code § 402) “Stinger/scout trucks have a GVW ranging (b) Not appropriate subject of lay opinion 5 from 6,000 to 37,500 pounds and have 2 axles. (Evid. Code § 800) 6 This class of vehicle includes ½ ton pickup (c) Lacks expert qualifications (Evid. Code § trucks that have been modified for use as 720) 7 stinger/scout trucks.” (d) Lacks foundation (Evid. Code § 403) 8 ¶ 9, pg. 2, ln. 28 to pg. 3, ln. 3 (a) Relevance (Evid. Code § 402) 9 “Bin delivery trucks are trucks which deliver (b) Conclusory, improper legal argument (In residential garbage, recycling and yard waste re Marriage of Heggie, 99 Cal. App. 4th 10 bins to residential customers when customers 28, 30, fn. 3 (2002) begin or modify service and pick up those bins 11 when customers down-size or discontinue 12 service. Bin delivery trucks are also used to deliver and pick up bins of 1 to 6 cubic yards to 13 residential and commercial customers.” 14 ¶ 9, pg. 3, lns. 3-5 (a) Relevance (Evid. Code § 402) 15 “Bin delivery trucks have a GVW ranging from (b) Not appropriate subject of lay opinion 9,000 to 80,000 pounds and have 2 or 3 axles. (Evid. Code § 800) 16 The heavier of these are tractor/trailer (c) Lacks expert qualifications (Evid. Code § combinations exceeding 40 feet.” 720) 17 (d) Lacks foundation (Evid. Code § 403) 18 ¶ 10, pg. 3, lns. 6-7 (e) Relevance (Evid. Code § 402) 19 “Port-o-Let trucks are used to deliver, retrieve (f) Not appropriate subject of lay opinion and service porta-potties. These trucks have a (Evid. Code § 800) 20 GVW of 15,000 to 35,000 pounds and have 2 (g) Lacks expert qualifications (Evid. Code § 21 axles.” 720) (h) Lacks foundation (Evid. Code § 403) 22 ¶ 11, pg. 3, lns. 8-11 (a) Relevance (Evid. Code § 402) 23 “As for registration, stinger/scout trucks, bin (b) Not appropriate subject of lay opinion 24 delivery trucks and Port-o-Let trucks with a (Evid. Code § 800) GVW over 10,000 pounds and trucks which are (c) Lacks expert qualifications (Evid. Code § 25 based on pickup trucks exceed 8,001 pounds 720) unladen and/or 11,499 GVW are registered (d) Lacks foundation (Evid. Code § 403) 26 with the DMV as commercial vehicles.” (e) Lacks personal knowledge (Evid. Code § 27 702) 28 ¶ 11, pg. 3, lns. 11-12 (a) Relevance (Evid. Code § 402) 10 __________________________________________________________________________________________ PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION 1 “All stinger/scout trucks, bin delivery trucks (b) Lacks foundation (Evid. Code § 403) and Port-o-Let trucks display USA Waste’s (c) Lacks personal knowledge (Evid. Code § 2 California motor carrier permit number 702) 3 regardless of the GVW” 4 ¶ 12, pg. 3, lns. 13-16 (a) Relevance (Evid. Code § 402) “Drivers of stinger/scout trucks, bin delivery (b) Not appropriate subject of lay opinion 5 trucks and Port-o-Let trucks greater than 26,000 (Evid. Code § 800) 6 pounds GVW are required to have at least a (c) Lacks expert qualifications (Evid. Code § commercial Class B license. If the vehicle is 720) 7 under 26,000 pounds a regular Class C license (d) Lacks foundation (Evid. Code § 403) is enough, but drivers often have commercial (e) Lacks personal knowledge (Evid. Code § 8 class B licenses.” 702) 9 ¶ 12, pg. 3, lns. 13-18 (a) Relevance (Evid. Code § 402) 10 “Drivers of stinger/scout trucks, bin delivery (b) Not appropriate subject of lay opinion trucks and Port-o-Let trucks are required to (Evid. Code § 800) 11 perform pre- and post-trip inspections of the (c) Lacks expert qualifications (Evid. Code § 12 vehicles, as enforced by the CHP, if the GVW 720) exceeds 26,000 pounds.” (d) Lacks foundation (Evid. Code § 403) 13 (e) Lacks personal knowledge (Evid. Code § 702) 14 15 ¶ 12, pg. 3, lns. 18-20 (a) Relevance (Evid. Code § 402) “USA Waste treats all drivers with commercial (b) Lacks foundation (Evid. Code § 403) 16 licenses as subject to the California hours of (c) Lacks personal knowledge (Evid. Code § service limits, including the requirement to fill 702) 17 out hours of service logs, regardless of the 18 vehicle driven.” ¶ 13, pg. 3, ln. 21 (a) Relevance (Evid. Code § 402) 19 “Drivers record which vehicle(s) they drive on (b) Lacks foundation (Evid. Code § 403) a daily basis.” (c) Lacks personal knowledge (Evid. Code § 20 702) 21 22 OBJECTIONS TO THE DECLARATION OF ROBERT OBERG 23 Oberg Declaration (Def.’s Exh. Y) Plaintiff’s Objections 24 ¶ 2, pg. 1, lns. 8-9 (a) Relevance (Evid. Code § 402) 25 “BDC is a special waste division of USA (b) Conclusory, improper legal argument (In Waste. BDC is one of the USA Waste re Marriage of Heggie, 99 Cal. App. 4th 26 operations that in California that hauls 28, 30, fn. 3 (2002). Whether waste can 27 hazardous waste.” be classified as “hazardous” is an improper legal argument. 28 11 __________________________________________________________________________________________ PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S OPPOSITION TO MOTION FOR CLASS CERTIFICATION 1 ¶ 2, pg. 1, lns. 9-13 (a) Relevance (Evid. Code § 402) “The types of hazardous waste hauled by BDC (c) Conclusory, improper legal argument (In 2 is typically construction debris containing lead re Marriage of Heggie, 99 Cal. App. 4th 3 or asbestos, contaminated soil containing PCB 28, 30, fn. 3 (2002). Whether waste can and chemically treated wood. These are all be classified as “hazardous” is an 4 classified as hazardous waste under California’s improper legal argument. hazardous waste regulations. This material (b) Not appropriate subject of lay opinion 5 may come from commercial construction sites (Evid. Code § 800) 6 or private residences.” (c) Lacks expert qualifications (Evid. Code § 720) 7 (d) Lacks foundation (Evid. Code § 403) 8 ¶ 3, pg. 1, ln. 14 (a) Relevance (Evid. Code § 402) 9 “All of the drivers at BDC haul hazardous (d) Conclusory, improper legal argument (In waste. The frequency BDC drivers haul re Marriage of Heggie, 99 Cal. App. 4th 10 hazardous waste varies.” 28, 30, fn. 3 (2002). Whether waste can be classified as “hazardous” is an 11 improper legal argument. 12 (b) Lacks foundation (Evid. Code § 403) 13 ¶ 3, pg. 1, lns. 15-18 (a) Relevance (Evid. Code § 402) “Approximately 20% of the loads hauled by (e) Conclusory, improper legal argument (In 14 BDC contain hazardous waste. BDC drivers re Marriage of Heggie, 99 Cal. App. 4th 15 will typically haul 3-5 loads of hazardous waste 28, 30, fn. 3 (2002). Whether waste can a week, which could mean 4 loads of hazardous be classified as “hazardous” is an 16 waste in a single day and none the rest of the improper legal argument. week, or the loads may split up over the course (b) Lacks foundation (Evid. Code § 403) 17 of the week.” (c) Not appropriate subject of lay opinion 18 (Evid. Code § 800) (d) Lacks expert qualifications (Evid. Code § 19 720) 20 ¶ 3, pg. 1, ln. 18 (a) Relevance (Evid. Code § 402) 21 “The frequency depends on customer needs.” 22 ¶ 3, pg. 1, lns. 18-21 (a) Relevance (Evid. Code § 402) “Some hazard