11/04/2008 09-46 FAX 8187632610 ATTORNEY SERVICES 0003/005

NOV-04-2008 09:37

i PETER M. HART, Esq. (California Bar No. 198691)

LAW OFFICES OF PETER M. HART I
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V||cn u !F • Wm

2 13952 Bora Bora Way- F.320 EMnnncpp

3^ Marina Del Rey. CA 90292
Telephone: (3 10) 478-5789 ..nif . nnn
4 Facsimile: (509) 561-6441' NOV 4 2008
•j5 KENNETH H. YOON. Esa. (California Bar No. 198443) Bv "F 11771 p —
LAW OFFICES OF KENNETH H.YOON L o«r,JiyLlerk —,
6
One Wilshire Blvd., Suite 2200
7 Los Angeles, CA 9001 7
/ <)
Telephone: (213) 612-0988
Facsimile: (213) 947-1211 - - '
v£ "• ' • ' • - • • • •••• -
j V ^ 9
Latry W. Lee, (California Bar No. 228 1 75)
&S> ^ 10 DIVERSITY LAW GROUP, P.C.
D^ 444 S. Flower St, Suite 1370
Los Angeles, California 90071
12 Telephone: (213)488-6555
Facsimile: (213)488-6554 ^
13 • ', :

14 Attorneys for Plaintiff and Appellant Miles Maria

15 SUPERIOR COURT OF THE STATE OF CALIFORNIA
16 FOR THE COUNTY OF SACRAMENTO
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MILES MARIA, as an individual and on ) CASENO.-.07AS02124
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behalf of all others similarly situated, ' ) (Class Action)
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Plaintiff ) NOTICE OF APPEAL
20 ' )
VS. )
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22 APPLE, INC., a California corporation; , - - ) . - -.,..:
APPLE COMPUTER, INC., a California ) gy
23 corporation; and DOES 1 through;20,- ) ^
inclusive, ) ..
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25 Defendants. )

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5 NOTICB OF APPEAL

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11/04/2008 09:46 FAX 8187832610 ATTORNE.V. SERVICES 0004/005
MOV-04-200B 09:37

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: .

2 Plaintiff and Appellanf Miles Maria appeals to the Court of Appeal of the State of
3 California, Third (3ri) Appellate District, from the Court's Order entered on October 21,2008.
4 in Department 53 of the above-entitled court, denying Plaintiffs Motion for Class Certification.
5 Notice of Ruling of said Order was served by PlaintifB'Appellant on October 29, 2008.
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8 DATED: November 3,2008 • : . / , . DIVERSITY LAW GROUP, P.C.
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12 Larry W, Let,
' 'Attorney for Plaintiff and the Class
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NOTICE OF APPEAL

NOU-04-2008 09=56 8187632610 • 94X P. 04

11/04/2008 0 9 : 4 6 FAX 8187632610 ATTORNEV SERVICES 3005/005
P.04

1
PROOF OF SERVICE
2
(Code of Civil Procedure Sections 1013&, 2015.5)
3 STATE OF CALIFORNIA ] .
]ss.
4 COUNTY OF LOS ANGELES ]
I am employed in the County of Los Angeles. State of California. I am over the age
5 of 18 and not a party to the within action; my business addresa is 444 S. Flower Street, Suite 1370, Los
Angeles, California 90071.
6
On November 4.2008,1 served the following documents) described as: NOTICE OF
7 APPEAL on the interested parties in this action as follows:

8 Peter M Hart, Esq. - Lynne C. Hermle, Esq.

Law Offices of Peter M. Hart Orrick
9 139S2 BoraBoraWay, F-320 ;.. „ : i ">,• , ; , . > , 1000 Marsh Road
Marina del Key, California 90292 " Mcnlo Park, CA 94025-1015
10 Attorneys for Plaintiff Miles Mafia., Attorneys for Defendants Apple, Inc.; Apple
Computer, Inc.: andApple
11
Kenneth R Yooa, Esq.
12 Law Office* of Kenneth H. Yoon
One Wilshire Blvd., Suite 2200
13 Lofl Angeles, CA 90017
Attorneysfor PlaintiffMiles Maria
l . • • t- • {

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_X BY MAIL: .by placing the original or X a true and correct copy thereoi
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enclosed, in (a) sealed envelopes) addressed to the panties) listed above or on the attached mailing list.
I am readily familiar with the firm's practice for collection and processing of correspondence and other
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materials for mailing with the United States Postal Service. On mis date, I sealed the envelopes)
containing the above materials and placed me envelope(s) for collection and mailing on this date at the
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address above following our office's ordinary business practices. The envelopes) will be deposited with
the United States Postal Service on this date, in the ordinary course of business.
IB
BY FACSIMILE: by personally sending a true and correct copy of the above-
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deaczibed documents) to the party(ies) listed above or on the attached mailing list from facsimile
machine number (213) 488-6554 to the facsimile ma^hina numbers) indicated above or on
the attached mailing list. I certify mat said transmission was completed and that all pages were
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received by the party(les) identified herein or on the attached mailing list, and that a report was generated
by facsimile machine number (213) 488-6554 which confirms said transmission's) and receipts).
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BY FEDERAL EXPRESS: by placing the original or X a true and
22
correct copy thereof enclosed, in (a) sealed envelopes) addressed to the party(les) listed above or on the
attached mailing list.
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I declare under penalty of perjury under the laws of the State of California that the above is true
24 and correct Executed on November 4,2008, at Los Angeles, California.
25
ISndaLee

TOTAL P.04

NOU-04-2008 09=56 8187632610''''""'-'' -r"X'V. '"' ''" 95X P. 05

 SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER

Date: 10/21/2008 Time: 02:00:00 PM Dept: 53

Judicial Officer Presiding: Judge Loren McMaster
Clerk: T. West
Bailiff/Court Attendant: L. Venkus
ERM: P Libis-Moore
Reporter: K. Greiner #3690,

Case Init. Date: 06/01/2007

Case No: 07AS02124 Case Title: MILES MARIA VS APPLE. INC.. ET AL.

Case Category: Civil - Unlimited

Event Type: Motion - Other - Civil Law and Motion

Causal Document & Date Filed:

Appearances:

Larry Lee is Present for Plaintiff

Kenneth Yoon is Present for Plaintiff
Lynne Hermle is Present for Defendant
Jessica Perry is Present for Defendant
Nature of Proceeding: Motion for Class Certification
TENTATIVE RULING
The motion of Plaintiff Miles Maria for an order certifying a class as to the causes of action asserted in
his First Amended Complaint against Apple, Inc. is denied as set forth below.
Evidentiary Objections.
The court first rules upon the parties' evidentiary objections as follows.
Plaintiffs objections: Perry Declaration, and the employee declarations attached thereto, are overruled.
Defendant's objections:
Improper Argument
Defendant objects to 32 arguments of Plaintiffs counsel made in the Plaintiffs memorandum of points
and authorities upon the ground that the evidence cited by Plaintiffs counsel as supporting the argument
is mischaracterized, or a statement of fact in the argument is not supported by any cife to evidence.
Such objections are not to the evidence, but are more in the nature of objections of attorney misconduct
by improper argument. (Cal. Rules of Prof. Cond. 5-200(A) and (B); People v. Hill (1998) 17 Cal.4th 800,
823, 827; City of Los Angeles v. Decker (1977) 18 Cal.Sd 860, 870; Malkasian y. (rwin (1964) 61 Cal.2d
738.) Defendant's objection No. 1 contends that Plaintiff solely and misleading cites the Butler and
Garror Depositions to support the assertion that agents were required to have Their computer's ready
before togging onto the phone system. However, Defendant fails to note that Plaintiff also cites the Maria
Deposition, the Lee Declaration, and Exhibits I-M thereto consisting of the Genzoli, Bearden, May,

Date: 10/21/2008 MINUTE ORDER Page: 1

Dept: 53 Calendar No.:
 Case Title: MILES MARIA VS APPLE. INC.. ET AL. Case No: 07AS02124

Fraser, and Malloy Declarations. Viewed in comppsition as cited by Plaintiff, Plaintiffs cites to the Butler
and Garror depositions are not misleading or a mischaracterization of their testimony. Defendant fails to
identify the compilation of cites in Objections 1 and 5, and they are overruled. Defendant's Objections
Nos. 7, 9, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 27, and 29, for Plaintiffs failure to cite evidence to
support the related assertion are overruled. In these instances, Plaintiff has neither mischaracterized
evidence, nor falsely asserted that evidence exists to support the assertion. Objections Nos. 2, 3, 4, 6,
10, 12, and 20 are overruled. Defendants Objections Nos. 5, 8, 11, 21, 26, 28, 30, 31, and 32 are
sustained for improper mischaracterization. Defendant's further evidentiary objections to Plaintiffs
arguments (foundation, speculative, etc.) are overruled as to objections 1-32. Arguments of counsel in
. points and authorities are not evidence.
Bearden Dec.
Objection 33 on the ground that Bearden failed to appear for his deposition pursuant to subpoena is
overruled. Objections Nos. 34, 35, 36, 40, 42, 44, 47, 48, and 49 are pverruled. Objections Nos. 37, 38,
39, 41, 43, 45, and 46 are sustained. The Court has sustained objections on lack of foundation, lack of
personal knowledge and speculation as to the declarant's knowledge of the acts and circumstances of
other agents.
Genzoli Dec.
Objections Nos. 50, 55, 57, and 61 are overruled. Objections Nos. 51, 52, 53, 54, 56, 58, 59, and 60 are
sustained. The Court has sustained objections on lack of fpundation, lack of personal knowledge and
speculation as to the declarant's knowledge of the acts and circumstances of other agents.
May Dec.
Objections Nos. 62, 63, 64, 65, 66, 72, 73, and 76 are overruled. Objections Nos. 67, 68, 69, 70, 71, 74,
and 75 are sustained. The Court has sustained objections on lack of foundation, lack of personal
knowledge and speculation as to the declarant's knowledge of the acts and circumstances of other
agents.
Fraser Dec.
Objections Nos. 77 and 82 are overruled. Objections Nos. 78, 79, 80, 81, and 83 are sustained. The
Court has sustained objections on lack of foundation, lack of personal knowledge and speculation as to
the declarant's knowledge of the acts and circumstances of other agents.
Malloy Dec.
Objections Nos. 84, 85, and 92 are overruled. Objections Nos. 86, 87, 88, 89, 90, 91, 93, and 94 are
sustained. The Court has sustained objections on lack of fpundation, lack of personal knowledge and
speculation as to the declarant's knowledge of the acts and circumstances of other agents.
Requests for Judicial Notice
Plaintiffs request for judicial notice is denied.
Defendant's request for judicial notice is denied.
Improper Authorities
In accordance with California Rules of Court, rule 8.1115(a), the Court has not considered the parties'
various improper citations to trial court dispositions, unpublished opinions, or "unreported" federal
opinions that could not be cited as authority even in the federal courts under Federal Rules of Appellate
Procedure Rule 32.1. Counsel are strongly cautioned to adhere to this mandatory limitation in the event
either party seeks oral argument on the Court's tentative ruling.
Analysis

Date: 10/21/2008 MINUTE ORDER Page: 2

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Case Title: MILES MARIA VS APPLE. INC.. ET AL. Case No: 07AS02124

Class certification requires proof: (1) of a sufficiently numerous, ascertainable class, (2) of a well-defined
community of interest, and (3) that certification will provide substantial benefits to litigants and the courts,
i.e., that proceeding as a class is superior to other methods. (See Code Civ. Proc., §382; Fireside Bank
v. Superior Court (2007) 40 Cal.4th 1069, 1089; Sav-On Drug Stores, Inc. v. Superior Court (2004) 34
CaUth 319, 326; Under v. Thrifty Oil Co. (2000) 23 CaUth 4Z9, 435; City of San Jose v. Superior Court
(1974) 12 Cal.Sd 447, 459.) Class actions are statutorily authorized "when the question is one of a
common or general interest, of many persons, or when the parties are numerous, and it is impracticable
to bring them all before the court .... (Code Civ. Proc., §382.) "The certification question is 'essentially a
procedural one that does not ask whether an action is legally or factually meritorious.'" (Sav-On, supra,
34 Cal.4th at p. 326.) "The party seeking certification has the burden to establish the existence of both
an ascertainable class and a well-defined community of interest among class members." (Sav-On,
supra, 34 Cal.4th at p. 326.)
The "community of interest" requirement embodies three factors: (1) predominant common questions of
law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class
representatives who can adequately represent the class." (Richmond v. Dart Industries, Inc. (1981) 29
Cal.Sd 462, 470.) Common questions of law or fact predominate if each member pf the putative class is
not "required to individually litigate numerous and substantial questions to determine his [or her] right to
recover following the class judgment; and the issues which may be jointly tried, when compared with
those requiring separate adjudication, must be sufficiently numerous and substantial to make the class
action advantageous to the judicial process and to the litigants." (Lockheed Martin Corp. v. Superior
Court (2003) 29 CaUth 1096, 1108.)
'"A class action also must be the superior means of resolving the litigation, for both the parties and the
court.1" (Lee v. Dynamex, Inc. (2008) 166 Cal. App. 4th 1325, 1333 citing Newell v. State Farm General
Ins. Co. (2004) 118 Cal.App.4lh 1094, 1101.) "'Generally, a class suit is appropriate "when numerous
parties suffer injury of insufficient size to warrant individual action and when denial of class relief would
result in unjust advantage to the wrongdoer.'" (Id.) "'[BJecause group action also has the potential to
create injustice, trial courts are required to "carefully weigh respective benefits and burdens and to allow
maintenance of the class action only where substantial benefits accrue both to litigants and the courts."1"
(Id.) The legal and practical issues presented by the case must also be considered for their bearing on
the superiority of the class action method. (Sav-on, supra, 34 Cal. 4th at p. 327.)
In light of the remaining admissible evidence, the Court does not find that the Plaintiff has met his
burden to establish that: (1) common questions of fact and law will predominate over the many
individualized inquiries as to each putative member's personal actions and employment experiences; (2)
the sufficient numerosity of the potential class; or (3) the superiority of the class action method.
Plaintiff fails to present evidence from which it may be inferred that the off-the-clock preparatory issue
alleged in the complaint was likely experienced by more than Plaintiff, and the his five declarants. None
of these witnesses provided creditable evidence that their individual practices and training in preparing
to log onto the phone system, recording and reporting their time worked, and Defendant's involvement if
any in those practices, were common and experienced by more than six individuals. Thus, evidence of
numerosity is absent which is fatal to a finding that a class action would be the superior method of
addressing their complaints.
Further, Plaintiff has failed to present sufficient evidence of commonality of the putative class members
to support a finding that the trial would not require many individualized fact intensive inquiries as to each
putative member's personal actions and employment experiences, including supervision and training,
during the class period.
The motion is denied. A formal order and further notice of this ruling are not required.
COURT RULING
The matter was argued and submitted. The Court affirmed the tentative ruling.

Date: 10/21/2008 MINUTE ORDER Page: 3

Dept: 53 Calendar No.: