Judge: Elaine Lu, Case: 24STCV30397, Date: 2025-03-07 Tentative Ruling
Case Number: 24STCV30397 Hearing Date: March 7, 2025 Dept: 9
The Court hereby
distributes a tentative ruling for the Case Management Order. The parties are welcome to provide input and
propose modification(s) to any aspect of the CMO at the Initial Status
Conference. If all parties submit on the
tentative CMO prior to the commencement of the March 7, 2025 ISC, the Court
will adopt the tentative CMO, and the parties need not appear.
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR
THE COUNTY OF LOS ANGELES
Ruth
Martin v Unilever United States, Inc. dba www.Breyers.com
24STCV30397
[TENTATIVE]
CASE MANAGEMENT ORDER
This action has been designated as
complex pursuant to CRC 3.400(a), and thus requires exceptional judicial
management. All provisions of this CMO are deemed necessary to carry out the
purposes of Rule 3.400(a), and to promote effective decision-making by the
Court. They are based upon individual consideration of this complex action, including
the Status Conference Reports previously filed by the parties.
1.
Defendant
states that the Breyer’s website at issue is governed by Terms of Use
containing a mandatory arbitration provision and class action waiver. See https://www.unileverus.com/terms/termsofuse.html#20
(Terms of Use, Section 20.B). However,
it does not appear that Defendant intends to move to compel arbitration
pursuant to this arbitration provision. Instead,
Defendant will file a motion to quash service for lack of personal jurisdiction,
and if that motion is unsuccessful, a demurrer.
The parties should note that litigation of multiple motions prior to
bringing a motion to compel arbitration may, under certain circumstances, be deemed
a waiver of arbitration.
2.
Defendant
does not believe that mediation will be productive at this time.
3.
Defendant
states that it has been erroneously named as it is only a holding company and
is not the legal entity that operates the website at issue. The parties are to meet and confer and to
attempt to resolve the identity of the proper defendants, including if appropriate
through a voluntary exchange of informal discovery and/or declarations. If the parties are able to reach an
agreement, they may file a stipulation and proposed order regarding dismissal
of the currently named defendant and amendment of the complaint to delete the current
named defendant and to name instead the correct defendant. If the parties are unable to reach an
agreement, Defendants may have to file a dispositive motion to resolve the
issue.
4.
The
Court hereby lifts the stay to permit Defendant to file and serve a Motion to Quash
Service of Summons for Lack of Personal Jurisdiction. Defendant must file and serve its anticipated
Motion to Quash Service of Summons for Lack of Personal Jurisdiction by no
later than April 7, 2025. Before
filing any demurrer or other motion, the moving party must contact the
Court Staff in Department 9 to obtain a hearing date and a briefing schedule. The Court sets a Non-Appearance Case Review
Re: Filing and Serving of Defendant’s Responsive Pleading for April 14, 2025,
8:30 AM, Department 9. If the Court
denies Defendant’s anticipated Motion to Quash Service of Summons for Lack of
Personal Jurisdiction, the Court will set a due date for Defendant’s
anticipated demurrer approximately 30 days from the court’s ruling on Defendant’s
Motion to Quash Service of Summons for Lack of Personal Jurisdiction.
5.
Phased Discovery. Discovery
shall be phased. Discovery will be
phased with the stay lifted once Defendant files and serves an answer or, if
applicable, after the Court rules on any pleading challenge. At that time, the
Court will permit class certification discovery only. Informal discovery
is permitted. Merits-based discovery
will be allowed after a successful class certification motion. If there is a
dispute concerning whether a given discovery request is certification or
merits-based, the parties are to set up a telephonic conference with the court
pursuant to the instructions herein.
6.
Class list discovery.
The decision in In Re Insurance Installment Fee cases (2012) 211
Cal.App.4th 1395, 1426-1429, held that the notice procedure prescribed by the
trial court and followed by the defendant was necessary to protect privacy
rights under the California Constitution.
Therefore, upon the Court’s lifting of the stay on class certification
discovery, the parties shall use the procedure described in Belaire-West
Landscape v Superior Court (2008) 149 Cal.App.4th 554 to notify putative
class members, as described in the applicable paragraph of the currently
operative complaint, giving them the opportunity to opt out. The parties must share the cost of the
procedure equally.
a. Plaintiff
is to take the lead and prepare a proposed letter to be sent out by the
agreed-upon third party administrator.
The parties must discuss and settle upon a final version.
b. The
letter must be written using the administrator’s letterhead, not that of any
party.
c. The
defense must turn over the contact information consisting of name, address,
phone number, and email address (if available) to the third-party
administrator.
d. In the
event the putative class list is greater than 400 people, the administrator
must randomly select a sample of no more than 400. The contact information for those persons
who did not opt out must be turned over to the plaintiff.
7.
Protective Order.
Parties are alerted that model protective orders may be found at Los
Angeles Superior Court website at http://www.lacourt.org/division/civil/CI0043.aspx. The parties are encouraged to use these model
orders as shown, or if modified, as a template for the modified order. A redlined courtesy copy must be posted on
the e-service bulletin board and lodged with the court at the time of filing.
The parties must use the redlined version to identify any changes proposed to
the model order.
8.
E-service & E-filing. Electronic service is not the same as
electronic filing. The parties have
agreed, and the Court has signed an order authorizing Case Anywhere as the
e-service to be used in this case.
Argument must not be posted on the bulletin board. For information on electronic filing in the
Complex Courts, please refer to https://www.lacourt.org/division/efiling/efiling2.aspx and http://www.lacourt.org/division/efiling/pdf/ComplexefilingFAQs.pdf.
9.
Class Certification Motion. The
Court will set a deadline for filing and serving the Class Certification Motion
after ruling on the anticipated Motion to Quash Service and anticipated Demurrer. If no party files a Motion to Quash Service or
Demurrer, then the Court will set a deadline for filing and serving the Class
Certification Motion upon the filing of Defendant’s answer.
10.
Telephonic conferences. The Court handles discovery motions
informally, using telephonic conferences and LA CourtConnect. Counsel must post
a message via their Electronic Service Provider to request any informal
discovery conference or other conference. The Court will either reply to the
message or issue a Minute Order setting the conference. The telephonic conference will automatically
be taken off calendar if all relevant parties have not scheduled the telephonic
conference with LA CourtConnect. Parties
must file and serve a 5-page joint brief two days before the conference. Since
these conferences are informal, no court reporter or audio recording is
permitted.
11.
Potential Related Cases. Counsel are ordered to file and serve a
Notice of Related Case for any potentially related cases pursuant California
Rule of court Rule 3.300, civil case involving the same representative
plaintiff. This is a continuing
obligation on both plaintiffs and defendants while this case is pending.
Plaintiff
is ordered to download the instant signed order from the Court’s website,
to give formal notice to all other parties, and to file proof of service of
such within five (5) days.
IT IS SO ORDERED.
DATED: March 7, 2025
__________________________
ELAINE
LU
Judge
of the Superior Court