Notice Of Appeal

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ATTORNEY

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PETER M. HART, Esq. (California Bar No. 198691) LAW OFFICES OF PETER M. HART

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KENNETH H. YOON. Esa. (California Bar No. 198443) LAW OFFICES OF KENNETH H.YOON One Wilshire Blvd., Suite 2200 Los Angeles, CA 9001 7 Telephone: (213) 612-0988 Facsimile: (213) 947-1211 - - ' "• ' • ' • - • • • •••• Latry W. Lee, (California Bar No. 228 1 75) DIVERSITY LAW GROUP, P.C. 444 S. Flower St, Suite 1370 Los Angeles, California 90071 Telephone: (213)488-6555

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14 Attorneys for Plaintiff and Appellant Miles Maria 15

SUPERIOR COURT OF THE STATE OF CALIFORNIA

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FOR THE COUNTY OF SACRAMENTO

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MILES MARIA, as an individual and on behalf of all others similarly situated, '

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) ) NOTICE OF APPEAL )

Plaintiff '

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) CASENO.-.07AS02124 ) (Class Action)

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22 APPLE, INC., a California corporation; , - - ) . 23 24

APPLE COMPUTER, INC., a California corporation; and DOES 1 through;20,inclusive, Defendants.

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11/04/2008 09:46 FAX 8187832610 MOV-04-200B 09:37

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ATTORNE.V. SERVICES

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: . Plaintiff and Appellanf Miles Maria appeals to the Court of Appeal of the State of 2 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.

6 1 8 DATED: November 3,2008 • : . / , . 9

DIVERSITY LAW GROUP, P.C.

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Larry W, Let, ' 'Attorney for Plaintiff and the Class

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NOTICE OF APPEAL

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1 PROOF OF SERVICE

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(Code of Civil Procedure Sections 1013&, 2015.5) STATE OF CALIFORNIA ] . ]ss. COUNTY OF LOS ANGELES ] I am employed in the County of Los Angeles. State of California. I am over the age of 18 and not a party to the within action; my business addresa is 444 S. Flower Street, Suite 1370, Los Angeles, California 90071.

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On November 4.2008,1 served the following documents) described as: NOTICE OF APPEAL on the interested parties in this action as follows:

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Peter M Hart, Esq.

- Lynne C. Hermle, Esq. Orrick

Law Offices of Peter M. Hart 9

139S2 BoraBoraWay, F-320 ;.. „ Marina del Key, California 90292 Attorneys for Plaintiff Miles Mafia.,

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, ; , . > , 1000 Marsh Road " Mcnlo Park, CA 94025-1015 Attorneys for Defendants Apple, Inc.; Apple Computer, Inc.: andApple

Kenneth R Yooa, Esq. Law Office* of Kenneth H. Yoon One Wilshire Blvd., Suite 2200 Lofl Angeles, CA 90017 Attorneysfor PlaintiffMiles Maria

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_X BY MAIL: .by placing the original or X a true and correct copy thereoi enclosed, in (a) sealed envelopes) addressed to the panties) listed above or on the attached mailing list. 15 I am readily familiar with the firm's practice for collection and processing of correspondence and other materials for mailing with the United States Postal Service. On mis date, I sealed the envelopes) 16 containing the above materials and placed me envelope(s) for collection and mailing on this date at the address above following our office's ordinary business practices. The envelopes) will be deposited with 17 the United States Postal Service on this date, in the ordinary course of business. IB 19 20 21 22 23 24

BY FACSIMILE: by personally sending a true and correct copy of the abovedeaczibed 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 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). BY FEDERAL EXPRESS: by placing the original or X a true and correct copy thereof enclosed, in (a) sealed envelopes) addressed to the party(les) listed above or on the attached mailing list. I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on November 4,2008, at Los Angeles, California.

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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 Dept: 53

MINUTE ORDER

Page: 1 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 Dept: 53

MINUTE ORDER

Page: 2 Calendar No.:

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 Dept: 53

MINUTE ORDER

Page: 3 Calendar No.: