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oe ~@ JANE ; 1 |} BLOOD HURST & O’REARDON, LLP TIMOTHY G. BLOOD (149343) 2 || LESLIE E. HURST (178432) THOMAS J.O?REARDON II (247952) 3 | PAULA R. BROWN (254142) ALAMEDA COUNTY 501 West Broadway, Suite 1490 4 || San Diego, CA 92101 MAR 13 2020 Tel: 619/338-1100 , 202 5S || 619/338-1101 (fax) tblood@bholaw.com 6 || lhurst@bholaw.com toreardon@bholaw.com 7 || pbrown@bholaw.com 8 || Attorneys for Plaintiff 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF ALAMEDA — NORTHERN DIVISION Ay 4 11 || PATRICIA BLAND, individually and on Case No. RG19002714 Zz behalf of allothers similarly situated, Q . 12 Assigned for All Purposes to: z Plaintiff, Honorable Winifred Y. Smith FS 13 Department 21 Vv. ro 14 CLASS ACTION B PREMIER NUTRITION & 15. | CORPORATION; and DOES 1-25, DECLARATION OF TIMOTHY G BLOOD ee inclusive, IN SUPPORT OF PLAINTIFF’S MOTION — 16 eu. 2 Caen FOR CLASS CERTIFICATION a Defendant. ; 5 17 a Lot. , oo (UNLIMITED MATTER-Amount demanded 18 bs exceeds $25,000) 19 Complaint Filed: January 15, 2019 Remanded: September 23, 2019 20 Trial Date: None 21 DEMAND FOR JURY TRIAL 22 23 24 25 26 27 28 . Case No. RG19002714 00156725 BLOOD DECLARATION IN SUPPORT OF MOTION FOR CLASS CERTIFICATION I,TIMOTHY G. BLOOD, declare as follows: 1. I am an attorney licensed to practice before allcourts of the State of California and admitted to practice before this Court. J am the managing partner of the law firm of Blood Hurst & O’Reardon, LLP (“BHO”), one of the law firms representing Plaintiff Patricia Bland. I have personal knowledge of the matters stated and, if called upon, could and would competently testify to them. YN 2. I submit this declaration in support of Plaintiff’s motion for class certification, which includes a request appointing myself and Thomas J. O’Reardon II of Blood Hurst & Oo O’Reardon, LLP as Class Counsel in this action. oO 10 3. Plaintiff originally filed her complaint in this Court on January 15, 2019. 11 LLP Premier then removed the action to the Northern District of California and it was assigned to 12 REARDON, Judge Richard Seeborg. On September 23, 2019, Judge Seeborg granted Plaintiff's motion to 13 remand, and the case is again before this Court, Judge Winifred Y. Smith presiding. 14 4. My law firm practice focuses on the nationwide prosecution of complex class O’? 15 & ‘actions. Since 1994, a significant portion of my practice has involved prosecuting consumer HursT 16 protection and false advertising class.actions. I have acted as lead counsel in numerous. cases 17 BLOOD and have been appointed class counsel by state and federal courts throughout the country. I _18 have tried, either as assisting counsel-or lead counsel, class action lawsuits. I have also worked |- 19 on a number of appeals resulting in decisions presenting consumer protection law issues 20 relevant to this action. These include Sonner v. Schwabe N. Am., Inc., 911 F.3d 989 (9th Cir. 21 2018) (consumer law and false advertising); Rikos v. P&G, 799 F.3d 497 (6th Cir. 2015) 22 (consumer law and false advertising), Corvello v. Wells Fargo Bank, NA, 728 F.3d 878 (9th 23 Cir. 2013) (consumer protection and banking); Fitzpatrick v. Gen. Mills, Inc., 635 F.3d 1279 24 (11th Cir. 2011), Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310 (2011) (consumer law and false 25 advertising); McKell v. Wash. Mut., Inc., 142 Cal. App. 4th 1457 (2006), Kruse v. Wells Fargo 26 Home Mortg., Inc, 383 F.3d 49 (2d Cir. 2004) (consumer and banking law); Lebrilla v. 27 Farmers Grp., Inc., 119 Cal. App. 4th 1070 (2004), In re Monumental Life Ins. Co., 365 F.3d 28 408 (Sth Cir. 2004) (life insurance, consumer protection and civil rights); and Lavie v. Procter 2 Case No. RG19002714 00156725 BLOOD DECLARATION IN SUPPORT OF MOTION FOR CLASS CERTIFICATION & Gamble, Co., 105 Cal. App. 4th 496 (2003). I am a frequent lecturer at seminars about class actions, consumer protection and related issues. A copy of the BHO firm résumé, which contains my biographical information, isattached as Exhibit 101 to this declaration. 5. I also have worked with the Federal Trade Commission in a unique public- private partnership to obtain record setting recoveries for consumers. For example, the settlement obtained in In re Skechers Toning Shoes Prods. Liab. Litig., Case No. 3:11-MD- sD 2308-TBR (W.D. KY), resulted in a $45 million recovery — the largest consumer recovery in FTC history in a false advertising action. ioe) 6. I have served as Class Counsel in a number of class actions involving false 10 advertising, including in cases involving falsely advertised consumer products. Recent LLP 11 appointments in such actions include Sonner v. Schwabe N. Am., Inc., No. 5:15-cv-01358 VAP REARDON, 12 (SPx), 2019 U.S. Dist. LEXIS 117623 (C.D. Cal. July 2, 2019) (certifying California class in 13 false advertising of health benefits action concerning dietary supplement products); Yamagata 14 v. Reckitt Benckiser LLC, No. 17-cv-03529-VC, 2019 U.S. Dist. LEXIS 117599 (N.D. Cal. & O’ _15 June’5, 2019) (certifying UCL, ‘CLRA, FAL California class and New York §§ 349-350 class |. Hurst ‘16 alleging false and deceptive advertising of health benefits of glucosamine products); Mullins v.- BLOOD 17 Premier Nutrition Corp., No. 13-1271, 2016 U.S. Dist. LEXIS 51140 (N.D. Cal. Apr. 15, 18 . 2016) (certified class action involving false advertising of Joint Juice glucosamine and | 19 chondroitin supplement); Rikos v. P&G, No. 1:11-cv-226, 2014 U.S. Dist. LEXIS 109302 20 (S.D. Ohio June 19, 2014) (certifying five single-state classes alleging consumer protection 21 claims challenging P&G’s advertising of Align probiotic supplement and affirmed on appeal); 22 Johns v. Bayer Corp., 280 F.R.D. 551 (S.D. Cal. 2012) (certifying UCL and CLRA claims in 23 action involving false advertising of Bayer’s One-A-Day men’s vitamins); Johnson v. Gen. 24 Mills, Inc., 275 F.R.D. 282 (C.D. Cal. 2011) (certifying UCL and CLRA claims in action 25 involving false advertising of General Mills’ YoPlus probiotic yogurt); Godec v. Bayer Corp., 26 Case No. 1:10-CV-224, 2011 U.S. Dist. LEXIS 131198 (N.D. Ohio Nov. 11, 2011) (certifying 27 express warranty claims involving false advertising of Bayer’s One-A-Day men’s vitamins); 28 Nelson v. Mead Johnson Nutrition Co., 270 F.R.D. 689, 692 (S.D. Fla. 2010) (certifying 3 Case No. RG19002714 00156725 BLOOD DECLARATION IN SUPPORT OF MOTION FOR CLASS CERTIFICATION FDUPTA claims alleging false and deceptive advertising of health benefits of baby formula products); ); Victor E. Bianchi v. Bosa Development California, No. 37-2009-00096686 (San Diego Superior Court) (obtained class certification and appointed Class Counsel in ongoing false advertising case); In re: Toyota Motor Cases, JCCP No. 4621 (Toyota Unintended Acceleration Consolidated Litigation) (appointed Co-Lead Class Counsel by the Los Angeles Superior Court); Dremak v. Urban Outfitters, Inc. et al., No. 37-2011-00085814-CU-BT-CTL DN (San Diego Superior Court). I 7. My partner, Thomas O’Reardon, also has significant experience litigating this CO type of class action lawsuit. Since 2006, his practice has focused exclusively on complex class oO 10 action lawsuits, including false advertising cases. Some of these actions on which Mr. LLP 11 O’Reardon has worked (all in capacity where he or our firm served as Class Counsel), and REARDON, 12 which have been certified in a non-settlement, contested litigation context, include: Sonner v. 13 Schwabe N. Am., Inc. (C.D. Cal. July 2, 2019) (certifying California class in false advertising 14 of health benefits action concerning dietary supplement products); Yamagata v. Reckitt & O’ 15 Benckiser LLC (N.D. Cal) (certified class action involving false advertising of Move Free Hurst 16 ,Advanced glucosamine .and‘:chondroitin supplement); Mullins v. Premier Nutrition_Corp. BLooD 17 (N.D. Cal.) (certified class action involving false advertising of Joint Juice glucosamine and 18 . chondroitin supplement); -Rikos v. The Proctor & Gamble Co. (S.D. Ohio) (certified class , 19 action involving false advertising of P&G’s Align probiotic, affirmed by the Sixth Circuit); 20 Dolfo v. Bank of Am. (S.D. Cal.) (certified class action involving mortgage modification 21 banking practices); Johnson v. Gen. Mills, Inc. (C.D. Cal.) (certified class action involving 22 false advertising of General Mills’ YoPlus yogurt); Fitzpatrick v. Gen. Mills, Inc. (S.D. Fla.) 23 (certified class action reviewed and approved by the Eleventh Circuit); Johns v. Bayer Corp. 24 (S.D. Cal.) (certified class action involving false advertising of Bayer’s One-A-Day 25 multivitamins); Godec v. Bayer Corp. (N.D. Ohio) (certified class action involving false 26 advertising of Bayer’s One-A-Day multivitamins); Corvello v. Wells Fargo Bank, NA (N.D. 27 Cal.) (certified class action involving mortgage modification practices where order granting 28 motion to dismiss was reversed by the Ninth Circuit in a published opinion); and Jn re Enfamil 4 Case No. RG19002714 00156725 BLOOD DECLARATION IN SUPPORT OF MOTION FOR CLASS CERTIFICATION LIPIL Mktg. & Sales Practices Litig. (S.D. Fla.) (certified class action involving false advertising of infant formula). In 2014-2019, Mr. O’Reardon was named a “Super Lawyers Rising Star.” He has also been a member of, and contributing author for, The Sedona Conference Working Group on Electronic Document Retention and Production. Mr. oN O’Reardon has been an invited speaker for the University of San Diego School of Law, WN Consumer Attorneys of California, the Consumer Attorneys of San Diego, and the San Diego DN ESI Forum on topics which include complex litigation, electronic discovery, and the class SN action settlement process. CO 8. This action includes the same underlying facts and allegations as the certified oO 10 California class in Mullins v. Premier Nutrition Corp., No 13-CV-02171, (N.D. Cal.). Class 11 LLP certification was granted in Mullins on April 15, 2016. See Mullins v. Premier Nutrition Corp., 12 REARDON, No. 13-cv-01271, 2016 U.S. Dist. LEXIS 51140 (N.D. Cal. Apr. 15, 2016). Subsequently, 13 eight state-wide classes were certified by the Northern District of California on December 17, 14 2019, and Premier did not oppose certification other than a statute of limitations issue & O’ 15° concerning the-length of certain class periods. Those eight actions are: Caiazzo v. Premier Hurst 16. Nutrition Corporation;-Case No. .3:16-cv-006685 (Florida class); Lux v. Premier Nutrition BLoop 17 Corporation, Case No. 3:16-cv-006703 (Connecticut class); Ravinsky v. Premier Nutrition 18 . Corporation, Case No. 3:16-cv-006704 (Pennsylvania class); Dent v. Premier Nutrition 19 Corporation, Case No. 3:16-cv-006721 (Illinois class); Simmons v. Premier Nutrition 20 Corporation, Case No. 3:16-cv-007078 (Michigan class); Spencer v. Premier Nutrition 21 Corporation, Case No. 3:16-cv-007090 (Maryland class); Fishon v. Premier Nutrition 22 ‘Corporation, Case No. 3:16-cv-006980 (New York class); Schupp v. Premier Nutrition 23 Corporation, Case No. 3:16-cv-00054 (Massachusetts class) (collectively, the “related 24 actions”). 25 9. The parties have agreed, and the Court has ordered, that discovery from Mullins 26 and the related actions can be utilized in this case. See Nov. 27, 2019 Joint Stip. and Order. In | 27 Mullins and the related actions, extensive work has been done identifying and investigating 28 potential claims and litigating the cases. This work includes, but is not limited to, significant 5 Case No. RG19002714 00156725 BLOOD DECLARATION IN SUPPORT OF MOTION FOR CLASS CERTIFICATION pre-suit investigation, analysis of the scientific basis for the advertising claims, deposing Premier’s corporate designees and employees about marketing and science issues, and analyzing documents and other information obtained through formal discovery, including third-party subpoenas. We also retained expert witnesses and consultants and performed £& significant legal research, including research into the aspects relevant to the claims at issue. WN 10. Since filing Mullins, we have obtained and reviewed approximately 490,000 NH pages of documents from Premier. We retained an outside vendor and created a coding AN database specifically established for this litigation. These documents include scientific studies oe) concerning glucosamine and chondroitin, advertising and marketing-related research, 10 marketing-related documents and documents pertaining to sales and other financial LLP 11 information. These documents were obtained after numerous meet and confer discussions REARDON, 12 between the parties and the implementation of a protocol relating to Premier’s electronically 13 stored information. We also served subpoenas for documents on twelve third-parties. These 14 subpoenaed parties are substantially involved in the marketing issues implicated in this action & O’ 1S. or.have been the major retailers. who sold Premier’s Joint Juice products to Class members. As HursT 16 a resultof these subpoenas, we have obtained thousands of pages of relevant and probative BLOoD 17 information and declarations. Along with co-counsel, we also took the depositions of eight 18: current and former Premier employees, as well as the deposition of Premier’s Fed. R. Civ. P. 19 30(b)(6) corporate designees. My firm also took five depositions of Premier’s marketing, 20 damages and science experts, and defended nine depositions of Plaintiff's experts. My firm has 21 drafted and served requests for admissions and several sets of interrogatories and met and 22 conferred with defense counsel regarding Premier’s responses. 23 11. ‘Patricia Bland, the named Plaintiff and proposed Class Representative, has 24 done all she has been asked to do in acting as the class representative, including staying 25 informed and involved in the litigation. Plaintiff has also submitted her sworn declaration in 26 support of this memorandum in support of class certification. See Ex. 102. 27 M1 28 // 6 Case No. RG19002714 00156725 BLOOD DECLARATION IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 12. BHO has devoted significant resources to this matter and is committed to continuing to expend the resources reasonably necessary to adequately represent the Class through trial and, if needed, on appeal. Attached are true and correct copies of the following exhibits: FF Exhibits to Plaintiff’s Motion for Class Certification Wn Exhibit 1 Joint Juice PowerPoint dated March 2010 re: Joint Health Product Category DH Overview and Joint Juice 2010 Marketing Plan Summary (JointJuice031086- 031136) [UNDER SEAL] YN Exhibit 2 PowerPoint titled “Joint Juice, We’re in the Healthy Joints Business” dated February 17, 2010 (JointJuice029905-029910) [UNDER SEAL] Exhibit 3 Excerpts from the June 6, 2014 deposition of Premier’s CEO, David 10 Ritterbush [UNDER SEAL] Exhibit 4 “Base Brand Meeting Agenda” dated June 8, 2011 (JointJuice062311- 11 LLP 062312) [UNDER SEAL] 12 REARDON, Exhibit 5 PowerPoint entitled “2010 Strategic Direction” (JointJuice031815-031845) [UNDER SEAL] 13 Exhibit 6 Excerpts from the July 25, 2014 deposition of Premier’s VP of Marketing, 14 Darcy Horn [UNDER SEAL] O” Exhibit 7 ~ | PowerPoint entitled “Joint Juice Research Report” dated June 30, 2009, from & | ~~” | Schireson (JointJuice001414-001453) [UNDER SEAL] HursT 16 - Exhibit 8 Email-with attachment Joint Juice Reconsideration Letter - DRAFT-dated April 3, 2013 (JointJuice131436-131450) [UNDER SEAL] ; 17 BLOOD ‘|Exhibit9- | Email re “Media-_topics/questions for today’s meeting” (JointJuice001299- 18 1301) [UNDER SEAL] 19 Exhibit 10 | PowerPoint entitled “Joint Juice School: Joint Juice User Profile” (JointJuice067851) (document produced in its native format without imaged 20 Bates stamps) [UNDER SEAL] 21 Exhibit 11 | Email chain re: “Joint Juice - Update” (JointJuice101640-101648) [UNDER SEAL] 22 Exhibit 12 | Joint Juice Company Brand Overview, April 2009 (JointJuice029481- 23 029509) [UNDER SEAL] Exhibit 13 | Email with attachment “Joint Juice 2011 Campaign Brief” (JointJuice088564- 24 88569) [UNDER SEAL] 25 Exhibit 14 | Email re: “Glucosamine review for meeting” (JointJuice087979) [UNDER SEAL] 26 Exhibit 15 | «2011 Campaign Brief Final” dated October 6, 2010 (JointJuice027183- 27 027186) [UNDER SEAL] 28 7 Case No. RG19002714 00156725 BLOOD DECLARATION IN SUPPORT OF MOTION FOR CLASS CERTIFICATION Exhibit 16 Evaluation Report of Comparative Consumer Product Accessibility for Users with and without Arthritis: Joint Juice (JointJuice061445-061559) [UNDER SEAL] Exhibit 17 PowerPoint entitled “2011 Sales Presentation” dated September 8, 2010 (JointJuice059593) (document produced in its native format without imaged Bates stamps) [UNDER SEAL] Exhibit 18 “Joint Juice Brand Guidelines” dated September 25, 2009 (JointJuice059999- 060004) [UNDER SEAL] Exhibit 19 60-second nationwide Joint Juice television commercial entitled “sD “Extraordinary Joe” (JointJuice074402) [FILED MANUALLY] (Apple QuickTime Media Player Recommended) [UNDER SEAL] ioe) Exhibit 20 30-second nationwide Joint Juice television commercial _ entitled “Extraordinary Joe” (JointJuice074401) [FILED MANUALLY] (Apple QuickTime Media Player Recommended) [UNDER SEAL] 10 Exhibit 21 Audio files containing four Joint Juice radio advertisem*nts (Eleven0000201- 11 0000204) [FILED MANUALLY AND UNDER SEAL]; LLP Exhibit 22. Presentation titled “Joint Juice 2011 Direct Response Brief Round 2,” dated 12 REARDON, December 9, 2010 (JointJuice022798-022800) [UNDER SEAL] 13 Exhibit 23 “Joint Juice Brand Guidelines 2010” (JointJuice071836-071843) [UNDER SEAL] 14 Exhibit 24 0’ Email re: “Examiner.com Media Interview — Recap” (JointJuice023798) 15 [UNDER SEAL] Hurst & Exhibit 25 Sam’s Club Joint. Juice — Pfizer Program Plan (JointJuice1329119-20) 16 [UNDER SEAL] 17 BLoop Exhibit 26 PowerPoint entitled “Business Plan Overview December, 2000” ‘(JointJuice065716) (document produced in its native format without imaged - 18 Bates stamps) [UNDER SEAL] 19 Exhibit 27 Email re “Joint Juice Program Summary” (JointJuice004970) [UNDER SEAL] 20 Exhibit 28 Email re: “Joint Juice —- Joe Montana Creative (JointJuice023350-23351) 21 [UNDER SEAL] Exhibit 29 PowerPoint entitled “Costco Wholesale — Premier Nutrition Pharmacy — On 22 Line” (PREMIERO013168) (document produced in its native format without 23 imaged Bates stamps) [UNDER SEAL] Exhibit 30 Email chain re: “Costco 2 Day Delivery Opportunity” (PREMIER275847- 24 275849) [UNDER SEAL] 25 Exhibit 31 Report entitled Joint Juice Business Plan Overview” dated May 2000 26 Exhibit 32 (JointJuice048142-48162) [UNDER SEAL] 2018 Premier Nutrition Corporation Marketing Updates titled “S1 Document” 27 (PREMIER264269-264278) [UNDER SEAL] 28 8 Case No. RG19002714 00156725 BLOOD DECLARATION IN SUPPORT OF MOTION FOR CLASS CERTIFICATION Exhibit 33 | May 2016 Spreadsheet of Google AdWords (PREMIER031825) (document produced in its native format without imaged Bates stamps) [UNDER SEAL] Exhibit 34 | Excerpts of Excel spreadsheet title “Ad Report Feb 6, 2017 — Mar 7, 2017 (PREMIER032141) (document produced in its native format without imaged Bates stamps) [UNDER SEAL] Exhibit 35 | Email chain re: “Joint Juice — brand question” (JointJuice087138-87139) [UNDER SEAL] Exhibit 36 | 2015 Campaign Screenshots (PREMIER133419-133422) [UNDER SEAL]; NN Exhibit 37 | Joint Juice Online Media Plan (JointJuice083762-083768) [UNDER SEAL] nN Exhibit 38 | Email re: “Joint Juice US Demo Results 9.18.18” (PREMIER275092) [UNDER SEAL] CoO Exhibit 39 | PowerPoint titled “Department 93 Meeting” dated February 23, 2016 oOo ((document produced in its native format without imaged Bates stamps) 10 [UNDER SEAL] Exhibit 40 | 2013 Joint Juice Brand Plan Sales Meeting dated December 5, 2012 LLP 11 (JointJuice0208 19-020828) [UNDER SEAL] REARDON, 12 Exhibit 41 | Joint Juice Brand Deck 2015 Final Rollout (PREMIER023359) (document produced in its native format without imaged Bates stamps) [UNDER SEAL] 13 Exhibit 42 | Email re: Digital Programming Follow-Up (PREMIER133529) [UNDER 14 SEAL] O’ Exhibit 43 | Client Input Document re: “2011 Campaign - BASE PLAN” dated & 15 HursT September 1,2010 (JointJuice0Q27203-27204) [UNDER SEAL] 16 Exhibit 44 | Email re: “Joint Juice Usage Survey” with attachment Excel file titled “Zoomerang Survey Results (JointJuice]02232-102233) (attached document BLoopD 17 produced in its native format without imaged Bates stamps) [UNDER SEAL] 18 Exhibit 45 | powerPoint titled “Joint Juice’ (PREMIER291253) (attached document 19 produced in its native format without imaged Bates stamps) [UNDER SEAL] Exhibit 46 | Email re: “Post Ad raw data” with attachment Excel file (Joint}uice088766) 20 (attached document produced in its native format without imaged Bates stamps) [UNDER SEAL] 21 Exhibit 47 | Email with attachment MindReader Consumer Research Survey dated June 22 2013 (JointJuice132511-132586) [UNDER SEAL] 23 Exhibit 48 | Email chain re: “Costco 2 Day Delivery Opportunity” (PREMIER276213- 276217) [UNDER SEAL] 24 Exhibit 49 Excerpts from the November 18, 2014, deposition of Premier’s Joint Juice 25 Brand Director and Fed. R. Civ. P. 30(b)(6) designee, Lance Palumbo [UNDER SEAL] 26 Exhibit 50 Joint Juice Sales Presentation to Target dated July 7, 2010 (JointJuice030013- 27 030040) [UNDER SEAL] 28 9 Case No. RG19002714 00156725 BLOOD DECLARATION IN SUPPORT OF MOTION FOR CLASS CERTIFICATION Exhibit 51 | PowerPoint titled “Q2 Business Update — PNC” dated April 19, 2016 (PREMIER175703) (document produced in its native format without imaged Bates stamps) [UNDER SEAL] Exhibit 52 | Costco Wholesale Corporation production in response to Plaintiffs subpoena (COSTCO_00001) [UNDER SEAL] Exhibit 53 | Defendant Premier’s 6/20/19 Responses to Plaintiffs First Set of Interrogatories Regarding Jurisdictional Discovery containing sales data from Walmart, Sam’s Club and Costco Wholesale Corporation [UNDER SEAL] Exhibit 54 | Certification of authenticity in response to third-party subpoena issued to “sD Walmart Inc. [UNDER SEAL] Exhibit 55 | Joint Juice Claims Substantiation, dated January 23, 2012 (JointJuice061895- CO 061900) [UNDER SEAL] oOo Exhibit56 | File named “Marketing Strategy Session.ppt” dated March 31, 2009 (JointJuice068533) (document produced in its native format without imaged 10 Bates stamps) [UNDER SEAL] 11 LLP Exhibit 57 | Email Fwd: “A washingtonpost.com article” (JointJuice097913) [UNDER SEAL] 12 REARDON, Exhibit 58 | Email re: “Google alert — glucosamine” (JointJuice022339-022340) [UNDER 13 SEAL] 14 Exhibit 59 | Email re: “Glucosamine Review — Non-Cargill Options” (PREMEIR034046- O’ 034047) [UNDER SEAL] 15 & Exhibit 60 | Email re: Glucosamine Research (PREMIER042164-042165) [UNDER Hurst SEAL] 16 Exhibit 61 | Letter re: CalRecycle’s March 2, 2010 Letter to Joint Juice dated April 16, 17 BLoop 2013 produced pursuant to Public Records Request 18 Exhibit 62 Exemplars of Joint Juice packaging and labeling 19 Exhibit 63 Excerpts from the January 16, 2020 deposition of Premier’s Director of Marketing and Fed. R. Civ. P. 30(b)(6) designee, Nick Stiritz 20 Exhibit 64 | Exemplar Joint Juice print advertisem*nts and coupons (JointJuice00022-29, 37, 44) 21 Exhibit 65 Excerpts from the January 9, 2020 deposition of Premier’s current President 22 and CEO, Darcy Horn 23 Exhibit 66 | Excerpts from the February 13, 2020 deposition of Premier’s Director of Sales — Costco, Donna Imes 24 Exhibit 67 | Exemplar screenshots from JointJuice.com webpage (JointJuice000101-113); 25 Exhibit 68 | Screenshots from www.archive.org (the “Wayback Machine”) of JointJuice.com webpages captured between December 2010 and January 26 2011 27 Exhibit 69 | Screenshots from www.archive.org (the “Wayback Machine”) of JointJuice.com webpages captured during June 2012; 28 10 Case No. RG19002714 00156725 BLOOD DECLARATION IN SUPPORT OF MOTION FOR CLASS CERTIFICATION Exhibit 70 Screenshots from www .jointjuice.com captured on February 28, 2020. Exhibit 71 Declaration of Timothy McAlindon, DM, MPH in Support of Plaintiffs Motion for Class Certification Exhibit 72 (“GAIT TY”)Clegg D.O., et al., Glucosamine, Chondroitin Sulfate, and the Two in Combination for Painful Knee Osteoarthritis. N. Engl. J. Med. 2006; - 354:795-808 (JointJuice010220-10233) Exhibit 73 MN Messier (2007) Glucosamine/chondroitin combined with exercise for the treatment of knee osteoarthritis: a preliminary study. Osteoarthritis and DBD Cartilage, 15:1256-1266 Exhibit 74 Rozendaal (2008) Effect of Glucosamine Sulfate on Hip Osteoarthritis. 148 ~~ Ann. of Intern. Med. 268-77 (JointJuice007350-007360) CO Exhibit 75 (“GAIT II’) Sawitzke A.D., et al., The Effect of Glucosamine and/or oO Chondroitin Sulfate on the Progression of Knee Osteoarthritis. Arthritis Rheum 2008 Oct; 58(10):3183-91 (JointJuiceO11195-011204) 10 Exhibit 76 (“GAIT III”) Sawitzke A.D. et al.,Clinical Efficacy and safety over two years LLP 11 use of glucosamine, chondroitin sulfate, their combination, celecoxib or placebo taken to treat osteoarthritis of the knee: a GAIT report. Ann Rheum REARDON, 12 Dis. 2010 August; 69(8):1459-1464 13 Exhibit 77 Wilkens (2010) Effect of Glucosamine on Pain-Related Disability in Patients with Chronic Low Back Pain and Degenerative Lumbar Osteoarthritis: A 14 Randomized Controlled Trial. JAMA 2010; 304(1):45-52; O’ Exhibit 78 Fransen (2014) Glucosamine and chondroitin for knee osteoarthritis: a & 15 HurST double-blind randomized placebo-controlled clinical trial evaluating single 16 and combination .regimens. Ann Rheum Disease 74(5):851-858 (JointJuice137926-137934) BLOop 17 Exhibit 79 Kwoh (2014) Effect of Oral Glucosamine on Joint Structure in Individuals 18 with Chronic Knee Pain. Arthritis & Rheumatology, Vol. 66, No. 4, 930-39 Exhibit 80 Yang (2015) Effects of Glucosamine and Chondroitin Supplementation on 19 Knee Osteoarthritis: an an
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22CV015048: M. vs COUNTY OF ALAMEDA, et al. 08/01/2024 Hearing on Motion for Reconsideration filed by COUNTY OF ALAMEDA (DCSS) in Department 15Tentative Ruling - 07/30/2024 Peter BorkonThe Motion for Reconsideration filed by COUNTY OF ALAMEDA on 05/07/2024 is Denied.I. BackgroundR.M. filed a complaint against the County of Alameda, Rubicon Children’s Center, and LincolnFamilies arising from allegations that R.M. was sexually abused and assaulted while a minor infoster care. (2d Am. Compl. ¶¶ 1–4, 24–66.) As relevant to this discussion, R.M. alleged that,between about 1991 and 1994 or 1995, she was sexually abused and assaulted while placed withArt and Helen Cadelina in Milpitas, California (id. ¶¶ 24–32); and that, between about 1994 or1995 and 1999, she was sexually abused and assaulted while placed in the Rubicon Group Home(id. ¶¶ 33–45). Against the County, R.M. asserted a cause for negligence. (Id. ¶¶ 97–103.)On April 17, 2024, R.M. filed a notice of a related case, McDaniel v. County of Alameda,No. 22CV009691, stating the two actions “involve[d] the same parties and is based on the sameor similar claims.” (Accord Notice ¶ 1(h); McDaniel’s Notice Related Case, McDaniel (Apr. 17,2024).) In McDaniel, McDaniel filed a complaint against the County of Alameda and RubiconChildren’s Center arising from allegations that McDaniel was sexually abused and assaultedwhile a minor in foster care. (See 3d Am. Compl. ¶¶ 1–4, 25–41, McDaniel (Feb. 23, 2024).)McDaniel alleged that, between about 1993 and 1994, she was sexually abused and assaultedwhile placed with Art and Helen Cadelina in Milpitas, California (id. ¶¶ 25–31); and that,between about October 1994 and January 2001, she was sexually abused and assaulted whileplaced in the Rubicon Group Home (id. ¶¶ 33–45). Against the County, McDaniel asserted acause for negligence. (Id. ¶¶ 77–86.)On April 23, 2024, in McDaniel, the Court related this case and McDaniel after hearingargument from the parties. (Order, McDaniel (Borkon, J.).)The following day, the County filed a written objection to R.M.’s notice as untimely and arguedthat the two cases involved different parties and different claims. (Accord Obj., Apr. 24, 2024;County’s Obj., McDaniel (Apr. 17, 2024).) Then, on May 7, 2024, the County moved forreconsideration. (Mot.) The County argued that the new circ*mstance warranting reconsiderationwas the Court’s ruling on the notice before the Court could consider the County’s timelyobjection. (Mem. Supp. Mot. 1:28–3:2, May 7, 2024.) In support of unrelating the cases, theCounty argued that R.M.’s notice was untimely as R.M.’s counsel had known of the factsconcerning the existence of McDaniel for about two years. (See id. 3:12–17.) Next, the Countyargued that, although R.M. and McDaniel involved the same causes of action, the two actionsconcerned different plaintiffs, different alleged abusers, different employees, different fosterhomes, and different time periods. (See id. 3:18–4:28.) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV015048: M. vs COUNTY OF ALAMEDA, et al. 08/01/2024 Hearing on Motion for Reconsideration filed by COUNTY OF ALAMEDA (DCSS) in Department 15R.M. opposed. (Opp’n Mem., July 29, 2024.) R.M. argued that she and her sister, NicholeMcDaniel, were both sexually abused while minors in the Alameda County’s foster care system.(Id. 1:27–28, 2:19–23.) R.M. argued that both women sued Alameda County and RubiconChildren’s Center, not the alleged abusers; and that even though R.M. sued Lincoln Families as adefendant, the County would be liable for that party’s negligence. (Id. 2:13–18.) R.M. concludedby noting that unrelating the two cases would result in duplication of judicial resources if theCounty challenged the constitutionality of A.B. 218. (Id. 2:24–3:4.)II. Legal Standard“When an application for an order has been made to a judge, or to a court, and refused in wholeor in part, or granted, or granted conditionally, or on terms, any party affected by the order may,within 10 days after service upon the party of written notice of entry of the order and based uponnew or different facts, circ*mstances, or law, make application to the same judge or court thatmade the order, to reconsider the matter and modify, amend, or revoke the prior order.” (CodeCiv. Proc. § 1008(a).)III. DiscussionA. Existence of New Circ*mstanceThe Court finds no new circ*mstance warranting reconsideration. At the April 23, 2024 casemanagement conference, the Court informed the parties that this case would be reassigned toDepartment 518 after learning of the related case. The Court took argument, and issued an orderafter the hearing. The day after the hearing, the County filed a written objection to the notice ofrelated case, arguing points the Court had already considered. In this case, although the Court didnot consider the contents of the County’s written objections, it did consider the County’s oralobjections.B. Merits of the County’s ObjectionEven if the Court were to find a new circ*mstance existed, the Court would deny the County’smotion for reconsideration.1. Timeliness of NoticeThe Court is unpersuaded by the County’s argument that an untimely notice of related caseprecludes this Court from relating two cases. There may be a limitation on when the parties mayfile a notice of a related case, but the Court may relate cases at any point upon its own motion.(See generally Cal. R. Ct. 3.300.)Additionally, in this case, the underlying purposes of Rule 3.300 are furthered by considering an“untimely” notice of related case. The purpose of this rule is to promote judicial efficiency and SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV015048: M. vs COUNTY OF ALAMEDA, et al. 08/01/2024 Hearing on Motion for Reconsideration filed by COUNTY OF ALAMEDA (DCSS) in Department 15prevent plaintiffs from “judge shopping.” As discussed below, relating R.M. and McDaniel willpromote judicial efficiency. And more importantly, there is no evidence of judge shopping here:The Court has not issued substantive rulings in either R.M. or McDaniel.2. Relation of R.M. and McDaniel“A pending civil case is related to another pending civil case, or to a civil case that wasdismissed with or without prejudice, or to a civil case that was disposed of by judgment, if thecases: [a]rise from the same or substantially identical transactions, incidents, or events requiringthe determination of the same or substantially identical questions of law or fact.” (Cal. R. Ct.3.300(a)(2).)The Court finds that the two actions should remain related because they involve substantiallyidentical incidents that will require determination of the substantially identical questions of lawand fact. Both R.M. and McDaniel were sexually abused and assaulted while at the Cadelinafoster home and at Rubicon around similar times. (See 2d Am. Compl. ¶¶ 24–45; see also 3dAm. Compl. ¶¶ 25–45, McDaniel.) Both R.M. and McDaniel involve nearly identical defendants,plaintiffs’ counsel, and defense counsel. Both R.M. and McDaniel involve similar theories ofnegligence against the County. (See 2d Am. Compl. ¶ 101 (alleging that the County did not takereasonable measures to “observe, respond to, and prevent sexual assault and abuse of Plaintiffwould injury Plaintiff”); see also 3d Am. Compl. ¶ 84, McDaniel (alleging that the County didnot take reasonable steps “avoid acts of sexual abuse against Plaintiff after County was on actualnotice of sexual abuse of Plaintiff by said perpetrators”).) And both R.M. and McDaniel willlikely involve duplicative motions challenging the constitutionality of A.B. 218.IV. OrderThe motion is DENIED.
Ruling
POOLE vs DEFLORIMONTE, et al.
Aug 01, 2024 |Civil Unlimited (Other Breach of Contract/Warr...) |23CV029549
23CV029549: POOLE vs DEFLORIMONTE, et al. 08/01/2024 Hearing on Motion to Compel for Production of Documents; filed by Lakeisha Poole (Plaintiff) in Department 17Tentative Ruling - 07/31/2024 Frank RoeschThe Motion to Compel Further Discovery Responses filed by Lakeisha Poole on 07/05/2024 isDenied.Plaintiff Lakeisha Poole’s (“Plaintiff”) Motion to Compel Further Responses to SpecialInterrogatories (Set One) and Requests for Production (Set One) are DENIED.Plaintiff’s motions to compel further responses to Special Interrogatories (Set One) and motionto compel further responses to Requests for Production (Set One) were not filed until July 5,2024, which is more than forty-five (45) days from the date that Defendant MichaelDeFlorimonte (Defendant) served his responses on May 6, 2024. (Varlack Decl. ISO RPD ¶ 5;Exh. B; Varlack Decl. ISO SPROG ¶ 5; Exh. B.)Because neither motion was filed within forty-five (45) days of receiving Defendant’s responses,Plaintiff has waived any right to compel a further response. (Rab v. Weber (2023) 91Cal.App.5th 1337, 1347.) The 45-day time limitation is mandatory and jurisdictional. (Sexton v.Superior Court (1997) 58 Cal.App.4th 1403, 1409.)If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, theTentative Ruling will become the order of the court.HOW DO I CONTEST A TENTATIVE RULING?THROUGH ECOURTNotify the Court and all the other parties no later than 4:00 PM one court day before thescheduled hearing, and briefly identify the issues you wish to argue through the following steps:1. Log into eCourt Public Portal2. Case Search3. Enter the Case Number and select “Search”4. Select the Case Name5. Select the Tentative Rulings Tab6. Select “Click to Contest this Ruling”7. Enter your Name and Reason for Contesting8. Select “Proceed”BY EMAILSend an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM onecourt day before the scheduled hearing. This will permit the department clerk to send invitationsto counsel to appear remotely. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV029549: POOLE vs DEFLORIMONTE, et al. 08/01/2024 Hearing on Motion to Compel for Production of Documents; filed by Lakeisha Poole (Plaintiff) in Department 17BOTH ECOURT AND EMAIL notices are required.
Ruling
SVC CORPORATION vs ALI
Aug 05, 2024 |Civil Unlimited (Unlawful Detainer/Residential...) |24CV062674
24CV062674: SVC CORPORATION vs ALI 08/05/2024 Hearing on Motion to Quash Service of Summons; filed by Ahsan Ali (Defendant) in Department 511Tentative Ruling - 08/01/2024 Sarah Sandford-SmithThe Motion to Quash Service of Summons filed by Ahsan Ali on 07/29/2024 is Granted.The motion of Specially Appearing Defendant Ahsan Ali (dba King Construction) to quashservice of summons, pursuant to CCP § 418.10(a)(1), is GRANTED.Plaintiff successfully requested entry of default and default judgment on March 11, 2024, basedupon its filing of proof of personal service of the summons. Although Defendant is the movingparty, Plaintiff SVC Corporation bears the burden of proving valid service. See Summers v.McClanahan (2006) 140 Cal.App.4th 403, 413; and Dill v. Berquist Const. Co., Inc. (1994) 24Cal.App.4th 1426, 1439-1440. On July 22, 2024, the Court conducted an evidentiary hearing onDefendant’s motion to set aside default. The Court found that Plaintiff failed to prove thatDefendant Ali was personally served on February 19, 2024.The Court will prepare the order. The parties are ordered to obtain a copy from the eCourt portal.Counsel for Specially Appearing Defendant Ali shall file and serve the notice of entry of orderno later than August 12, 2024.
Ruling
WILLIAMS vs 24 HOUR FITNESS USA, LLC, et al.
Aug 01, 2024 |Civil Unlimited (Wrongful Termination) |24CV069747
24CV069747: WILLIAMS vs 24 HOUR FITNESS USA, LLC, et al. 08/01/2024 Hearing on Motion to Compel Arbitration filed by 24 HOUR FITNESS USA, LLC (Defendant) in Department 24Tentative Ruling - 07/29/2024 Rebekah EvensonThe Motion to Compel Arbitration filed by 24 HOUR FITNESS USA, LLC on 06/03/2024 isGranted.The Motion to Compel Arbitration and Request for Immediate Stay by Defendant 24 HourFitness USA LLC is GRANTED as unopposed.Plaintiff is ordered to arbitrate his claims against 24 Hour Fitness USA LLC alleged in thislawsuit, in accordance with the Dispute Resolution Agreement submitted with the movingpapers.This action is STAYED pending completion of the parties’ arbitration, pursuant to Code of CivilProcedure section 1281.4.The Initial Case Management Conference currently scheduled for August 13, 2024 isCONTINUED to August 12, 2025 at 9:00 a.m. in Department 24. By no later than July 29, 2025,the parties are ordered to file a Joint Status Report indicating whether the arbitration has beencompleted, or if not, the anticipated completion date for the arbitration.The Initial Case Management Conference scheduled for 08/13/2024 is continued to 08/12/2025at 09:00 AM in Department 24 at Rene C. Davidson Courthouse .
Ruling
HOWARD, AN INDIVIDUAL, et al. vs TESLA, INC., DOING BUSINESS ...
Aug 01, 2024 |Civil Unlimited (Claims Involving Mass Tort) |23CV036966
23CV036966: HOWARD, AN INDIVIDUAL, et al. vs TESLA, INC., DOING BUSINESS IN CALIFORNIA AS TESLA MOTORS, INC., et al. 08/01/2024 Hearing on Motion to Compel Arbitration filed by TESLA, INC., doing business in California as TESLA MOTORS, INC. (Defendant) in Department 23Tentative Ruling - 07/31/2024 Michael MarkmanParties to Appear:Join ZoomGov Meetinghttps://alameda-courts-ca-gov.zoomgov.com/j/16061942036Meeting ID: 160 6194 2036One tap mobile+16692545252,,16061942036# US (San Jose)+14154494000,,16061942036# US (US Spanish Line)
Ruling
Broderick VS Gloria Malesardi as Executor of the Estate of
Aug 01, 2024 |Civil Unlimited (Fraud (no contract)) |HG21103647
HG21103647: Broderick VS Gloria Malesardi as Executor of the Estate of08/01/2024 Hearing on Motion for Sanctions filed by Colleen Broderick (Cross-Defendant) +in Department 17Tentative Ruling - 07/30/2024 Frank RoeschParties to Appear.COUNSEL/PARTIES may appear in-person or by Zoom.To appear by zoom,Join ZoomGov Meetinghttps://www.zoomgov.com/j/16146216257Meeting ID: 161 4621 6257One tap mobile+16692545252,,16146216257# US (San Jose)+16692161590,,16146216257# US (San Jose)
Ruling
RODRIGUEZ vs MELCHNER
Aug 01, 2024 |Civil Unlimited (Contractual Fraud) |23CV026024
23CV026024: RODRIGUEZ vs MELCHNER 08/01/2024 Hearing on Demurrer to cross-complaint; filed by Robert D Rodriguez (Cross- Defendant) in Department 24Tentative Ruling - 07/31/2024 Rebekah EvensonThe Demurrer filed by David Melchner on 01/31/2024 is Sustained with Leave to Amend.The Demurrer to the Cross-Complaint of David Melchner, filed by Plaintiff and Cross-DefendantRobert Rodriguez is SUSTAINED, as follows.Preliminarily, Melchner’s Cross-Complaint begins with three pages from a Judicial Council formComplaint, with a First Cause of Action for Indemnification, a Second Cause of Action forApportionment of Fault, and a Ninth Cause of Action for Declaratory Relief. This is followed byeight additional causes of action, for (1) general negligence, (2) intentional torts, (3) breach ofcontract, (4) fraud, (5) fraud, (6) fraud, (7) fraud, and (8) fraud.Rodriguez’s demurrers to the First Cause of Action for Indemnification and Second Cause ofAction for Apportionment of Fault, as pled on page 2 of the Judicial Council form Complaintportion of the Cross-Complaint, are SUSTAINED, WITHOUT LEAVE TO AMEND asunintelligible. Melchner appears to be alleging that Rodriguez should indemnify Melchner forany sums Melchner may be ordered to pay Rodriguez, and that Rodriguez is responsible for theinjuries suffered by Rodriguez. These allegations fail to state a legally cognizable claim forindemnification or apportionment of fault.As to the remaining causes of action alleged on pages 4, et seq. of the Cross-Complaint,Melchner’s First, Second, and Third Causes of Action, although brought under different theories,are based on substantially identical factual allegations. Melchner alleges that Rodriquez wasdisbarred after representing Melchner, that Rodriquez provided substandard legal services toMelchner, that Melchner has paid all amounts due to Rodriguez, and that “on or about March 8,2023 and various other dates” Rodriguez served him with “false and fraudulent attorney’sbillings and invoices for legal work purportedly authorized by Melchner.”Melchner’s Fourth, Fifth, Sixth, Seventh, and Eighth Causes of Action for fraud are also basedon substantially identical factual allegations. Melchner alleges that Rodriguez committed fraudby representing, “on or about March 8, 2023 and various other dates” that he would perform highquality legal work in representing Melchner, but then Rodriguez failed to perform as promised.The Court rejects Rodriguez’s argument that the First through Eighth Causes of Action arebarred by the statute of limitations of Code of Civil Procedure § 340.6 (one year from discoveryof the wrongful act or omission, or four years from the date of the wrongful act or omission,whichever occurs first.) The First through Third Causes of Action, as pled, are based on “falseand fraudulent” invoices that Rodriguez allegedly sent Melchner on March 8, 2023. Melchner’sCross-Complaint was filed less than one year later, on January 11, 2024. As for Melchner’sFourth through Eighth Causes of Action for Fraud, claims for fraud are exempt from application SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV026024: RODRIGUEZ vs MELCHNER 08/01/2024 Hearing on Demurrer to cross-complaint; filed by Robert D Rodriguez (Cross- Defendant) in Department 24of Code of Civil Procedure § 340.6.However, Rodriguez’s demurrers to the First through Third Causes of Action (for generalnegligence, intentional tort, and breach of contract) are SUSTAINED, WITH LEAVE TOAMEND for failure to state facts constituting a cause of action, and for uncertainty. As theCross-Complaint is currently pled, Melchner simply repeats the exact same allegations in supportof each of these causes of action. Melchner does not identify the intentional tort that Rodriguezcommitted, or the provision of any contract between Melchner and Rodriguez that Rodriguezallegedly breached. In addition, these causes of action allege that Rodriguez served Melchnerwith “false and fraudulent” invoices, but Melchner does not allege that he paid those invoices. Inshort, Melchner does not allege facts demonstrating how he was damaged by receipt of those“false and fraudulent” invoices. In amending, Melchner must clearly and concisely allege facts insupport of these causes of action, including how he was damaged by any conduct alleged.Rodriguez’s demurrers to the Fourth through Eighth Causes of Action for Fraud areSUSTAINED, WITH LEAVE TO AMEND for failure to state facts constituting a cause ofaction, and for uncertainty. Each of these causes of action allege that the fraud occurred “on orabout March 8, 2023 and various other dates”, but the only alleged fraud referenced in thefollowing text is that Rodriguez promised to perform high quality legal services in 2020. Inaddition, the Fourth through Eighth Causes of Action, as currently pled, are entirely duplicative.In amending, Melchner is given leave to allege one, and only one, cause of action for fraud.Melchner must allege, with particularity, what fraudulent representation(s) Rodriguez made;when the misrepresentation(s) was made; when Melchner discovered the representation(s) wasfalse; and what damage Melchner suffered, and when, in reasonable reliance on that allegedmisrepresentation(s).Rodriguez’s demurrer to the Ninth Cause of Action for Declaratory Relief is OVERRULED.Rodriguez’s argument that the Ninth Cause of Action is barred by the applicable statute oflimitations is clearly misplaced. Melchner seeks declaratory relief as to the validity of amandatory fee arbitration decision issued on December 14, 2023; Melchner’s Cross-Complaintwas filed less than one month later.Melchner must sequentially number all pages in his First Amended Cross-Complaint.Rodriguez’s Request for Judicial Notice is GRANTED.The Court will prepare the order. Rodriguez shall serve Notice of Entry of Order on Melchner.Melchner shall have 10 days to amend, running from service of Notice of Entry of Order onMelchner by Rodriguez. Rodriguez shall then have 10 days to respond.
Ruling
Golden Gate Land Holdings LLC VS Direct Action Everywhere
Aug 01, 2024 |Civil Unlimited (Other Non-Personal Injury/Pro...) |RG21091697
RG21091697: Golden Gate Land Holdings LLC VS Direct Action Everywhere08/01/2024 Hearing on Motion for Summary Judgment Direct Action Everywhere; filed by Direct Action Everywhere (Defendant) in Department 25Tentative Ruling - 08/01/2024 Jenna WhitmanThe Motion for Summary Judgment filed by Direct Action Everywhere on 02/22/2024 isGranted in Part.Defendant’s motion for summary judgment is DENIED. Defendant’s motion for summaryadjudication is GRANTED.BACKGROUND: Plaintiffs Golden Gate Land Holdings LLC, Pacific Racing Association, andPacific Racing Association II operate a horse racing facility at Golden Gate Fields. (Compl., ¶¶1–3.) Defendant Direct Action Everywhere (DxE), a 501(c)(3), non-profit is an animal rightsorganization. (See id., ¶ 15.) Plaintiffs assert causes of action for trespass and intentionalinterference with prospective economic relations against DxE, DxE’s SF Bay Area Chapter, andseveral affiliated individuals. Plaintiffs allege that defendants Rachel Christina Ziegler, RockyNing Gan Chau, Omar Enrique Aicardi, and James Nicholas Crom climbed over a fence, litincendiary devices, connected their arms using PVC piping to thwart attempts to remove themfrom the property, and stopped all racing on the track. (See id., ¶ 17.)DxE moves for summary judgment on the grounds that that plaintiffs cannot establish DxE’sliability for the trespass because the organization had no role in organizing the individuals’activities. In the alternative, DxE seeks summary adjudication of the third cause of action for arestraining order or injunction.LEGAL STANDARD: Summary judgment “shall be granted if all the papers submitted showthat there is no triable issue as to any material fact and that the moving party is entitled to ajudgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) A moving defendant has theburden to show that one or more elements of each cause of action “cannot be established” or thatthere is “a complete defense.” (Id., § 437c, subd. (p)(2).). Once a defendant has met that burden,the burden shifts to the plaintiff “to show that a triable issue of one or more material facts existsas to the cause of action or a defense thereto.” (Ibid.)EVIDENTIARY RULINGS: Plaintiffs’ request for judicial notice of court records in anothercase against DxE are granted. The court may not, however, take note of “the truth of hearsaystatements in decisions or court files, including pleadings, affidavits, testimony, or statements offact.” (Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App. 5th 360, 382.)DxE’s objections to Rachel Ziegler’s testimony based on irrelevance, lack of foundation,speculation, vagueness, and ambiguity are overruled. Ms. Ziegler is as qualified to testify onother individual defendants, on whose declarations DxE relies, about the underlying incident.DxE’s concerns go to weight and credibility, rather than admissibility, of the testimony. Except SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG21091697: Golden Gate Land Holdings LLC VS Direct Action Everywhere 08/01/2024 Hearing on Motion for Summary Judgment Direct Action Everywhere; filed by Direct Action Everywhere (Defendant) in Department 25asexplicitly addressed, all evidentiary objections are deemed immaterial to disposition of themotion. (See Code Civ. Proc., § 437c, subd. (q).)MOTION FOR SUMMARY JUDGMENT: Plaintiff alleges that DxE is vicariously liable,through an agency theory or otherwise, for the acts of the individual defendants. (See Compl., ¶¶10, 28.) In affirming the trial court’s denial of DxE’s anti-SLAPP motion to strike, the Court ofAppeal commented on the weakness of Plaintiff’s vicarious liability allegations: Direct Action argues that the focus should not be on the trespass, because the complaint's allegations of the organization's liability under various relationship theories were conclusory and cannot overcome the notion that the complaint's claims arose from protected activity. We agree that the allegations of Direct Action's liability were conclusory and the claims against it may be vulnerable to a demurrer or other summary challenge. The complaint alleged that the defendants acted with each other's “permission and consent,” but it did not allege any specific factual basis to support the allegations that each defendant was the “agent, co- conspirator, aider and abettor, employee, representative, co-venturer, partner, and/or alter ego” of the others. Still, regardless of the potential vulnerability of the claims against Direct Action, our review here is limited to the trial court's anti- SLAPP ruling, and we cannot conclude that the trial court erred in finding that Direct Action failed to satisfy its burden under the first step of the anti-SLAPP analysis to show that the claims against it arose from protected activity.(Golden Gate Land Holdings LLC v. Direct Action Everywhere (2022) 81 Cal.App.5th 82, 92.)DxE, however, did not challenge the pleading. On the instant motion, the court considers onlywhether DxE has shown that plaintiffs cannot prove liability as alleged. (See, e.g., AARTSProds., Inc. v. Crocker Nat’l Bank (1986) 179 Cal.App.3d 1061, 1064 [trial court first identifies“the issues framed by the pleadings since it is these allegations to which the motion must respondby establishing a complete defense or otherwise showing there is no factual basis for relief onany theory reasonably contemplated by the opponent’s pleading.”]. (To the extent defendant hadbrought a pleadings motion, the court would be inclined to grant leave to amend based on theevidence cited below.)Defendant fails to meet its burden to show that plaintiffs cannot establish conspiracy or aidingand abetting liability. The theories are not addressed in DxE’s separate statement at all.Plaintiffs, moreover, raise a triable of fact on these theories of vicarious liability, primarilythrough the testimony of Rachel Ziegler (See AMF Nos. 70–74, 81–82, 114–15, 117–18, 120–23.) The court, therefore, need not address defendant’s arguments on plaintiffs’ agency theory.The court is not persuaded that plaintiffs were required to plead a separate cause in order seekimposition of vicarious liability for conspiracy or aiding and abetting. The cases cited bydefendant are distinguishable, and they do not require a grant of summary judgment on vicariousliability theories that defendant failed to challenge in its motion. (See, e.g., Wells Fargo Bank, SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG21091697: Golden Gate Land Holdings LLC VS Direct Action Everywhere 08/01/2024 Hearing on Motion for Summary Judgment Direct Action Everywhere; filed by Direct Action Everywhere (Defendant) in Department 25N.A. v. Weinberg (2014) 227 Cal.App.4th 1, 7 [res judicata did not preclude plaintiff fromseeking to add a judgment debtor based on alter ego theory]; Simmons v. Ware (2013) 213Cal.App.4th 1035, 1051 [JNOV on joint venture theory of vicarious liability because of completelack of notice to defendant].) Defendant’s motion for summary judgment, therefore, is denied.MOTION FOR SUMMARY ADJUDICATION: Plaintiffs acknowledge that injunctive reliefis a remedy, not a cause of action. (Opp’n at p. 24.) Defendant’s motion for summaryadjudication, therefore, is granted. As noted by defendant, plaintiffs’ request for injunctive reliefcontained in the prayer remains.ORDER: Defendant’s motion for summary judgment is DENIED. Defendant’s motion forsummary adjudication is GRANTED as to the third cause of action.PLEASE NOTE: This tentative ruling will become the court’s order unless a party gives noticeof intent to contest by 11:00 am the day of the hearing. If you wish to contest, do so throughthe eCourt portal: https://www.alameda.courts.ca.gov/divisions/civil/tentative-rulings AND sendan email copying all parties and Department 25: dept25@alameda.courts.ca.gov
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