Free Motion to Remand to State Court - District Court of California - California

Case 3:07-cv-02133-JM-BLM

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Filed 11/13/2007

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JOHN DONBOLI (SBN: 205218) [email protected] JL SEAN SLATTERY (SBN: 210965) [email protected] DEL MAR LAW GROUP, LLP 322 8th Street, Suite 101 Del Mar, CA 92014 Telephone: (858) 793-6244 Facsimile: (858) 793-6005 Attorneys for Plaintiff: David Paz and all others similarly situated UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA DAVID PAZ, an individual and on behalf of all ) others similarly situated, ) ) Plaintiff, ) ) vs. ) ) PLAYTEX PRODUCTS, INC., a Delaware ) Corporation, and DOES 1 through 100, ) inclusive, ) ) Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:07-cv-2133-JM-BLM CLASS ACTION PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DECLARATION OF BRENDA LIISTRO IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL ACCOMPANYING DOCUMENTS: Notice of Motion and Motion; Memorandum of Points and Authorities; Objections To and Request For An Order Striking Submission of Unrelated Decision [28 U.S.C. § 1447] Date: Time: District Judge: Room/Floor: December 14, 2007 1:30 p.m. Hon. Jeffrey T. Miller Room 16 / 5th Floor

[NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT]

Plaintiff DAVID PAZ ("Plaintiff") objects to the following proffered evidence presented by defendant PLAYTEX PRODUCTS, INC. ("Defendant") in support of its Notice of Removal. EVIDENTIARY OBJECTIONS TO THE DECLARATION OF BRENDA LIISTRO 1. Paragraph 1, lines 23-25 and Paragraph 2, page 2 ("I am familiar with and receive
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EVIDENTIARY OBJECTIONS TO DECLARATION OF BRENDA LIISTRO CASE NO. 3:07-CV-2133-JM-BLM

Case 3:07-cv-02133-JM-BLM

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information about the sales of Playtex's spill proof cups with some form of a "Made in U.S.A." label, including sales in California" and "Between approximately November 2006 and October 2007, Playtex sold approximately 1,300,000 spill proof cups with some form of a "Made in U.S.A." label in California. Playtex does not control the retail sales prices of these cups in California, and the price varies among different sellers. I read Plaintiff's Complaint and understand that Plaintiff alleges that the average retail sales price of these cups in California is $6.99. Based on this allegation by Plaintiff, and Playtex's sales figures described above, the retail sales of those cups in California well exceed $5,000,000 for that 12 month period."). Objection. Plaintiff objects to this portion of the Declaration of Brenda Liistro ("Liistro Declaration") based on the declarant's lack of knowledge and failure to review relevant business records as set forth in Paragraph 1, lines 23-25 ("I am familiar with and receive information about the sales of Playtex's spill proof cups with some form of a "Made in U.S.A." label, including sales in California") and the declarant's improper summarization of the information in Paragraph 2. As such, Plaintiff objects because this statement lacks foundation and violates the best evidence rule. Fed. R. Evid. 901, 1002, 1006; Paddack v. Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir. 1984) ["The proponent of a summary must establish a foundation that (1) the underlying materials upon which the summary is based are admissible in evidence; and (2) the underlying documents were made available to the opposing party for inspection."). Additionally, the summary must "fairly represent" the underlying documents. Davis & Cox v. Summa Corporation, 751 F.2d 1507, 1516 (9th Cir. 1985) (superseded by statute on other grounds as stated in Northrop Corp. v. Traid Intern. Marketing S.A., 842 F.2d 1154 (9th Cir. 1988)). In this case, Defendant has not established the necessary foundation that the underlying documents are admissible into evidence and has not made the underlying documents available to Plaintiff for inspection. 2. Paragraph 3, page 2 ("If the Court required Playtex to disgorge all of its revenues

from the sale of its spill proof cups with some form of a "Made in U.S.A." label from January 2007 through the resolution of this case, and issue a complete refund for each cup sold, based on Plaintiff's allegations and the sales figures above, Playtex would suffer a pecuniary loss that will
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EVIDENTIARY OBJECTIONS TO DECLARATION OF BRENDA LIISTRO CASE NO. 3:07-CV-2133-JM-BLM

Case 3:07-cv-02133-JM-BLM

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exceed $5,000,000."). As such, Plaintiff objects because this statement is not "relevant evidence" and inadmissible. Fed. R. Evid. 401, 402. Objection. Plaintiff objects to this portion of the Liistro Declaration based on the declarant's misapplication of the relevant legal standard to summarily conclude the purported pecuniary loss to Defendant. Relevant evidence is that which has a tendency to make the "existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The purported calculations by the declarant of the overall pecuniary loss to Defendant constitute a legal conclusion as to the damages in this case, which is improper by this non-expert witness. The measure of damages in this case, as set forth in the seminal case of Colgan v. Leatherman Tool Group, Inc., 135 Cal.App.4th 663 (2nd Dist. 2006), is not measured by the total of Defendant's retail sales (as set forth by Defendant in the Notice of Removal), nor its gross profits relating to California sales, or even by 25% of Defendant's gross profits. Id. at 700 [Although the Leatherman case was remanded on appeal based on the absence of evidence to support the amount of restitution awarded, the trial court rejected as "`inequitable' a percentage of Leatherman's gross profits as an appropriate measure of either the unlawful benefit to Leatherman or the amount necessary to restore consumers to the position in which they would have been but for the unlawful conduct.]. As such, the appropriate legal standard for calculating damages would not require Defendant to "issue a complete refund for each cup sold...." Liistro Declaration, ¶ 3, lines 13-14. CONCLUSION Plaintiff respectfully requests that the Court sustain the above objections and strike the /// /// /// /// ///
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EVIDENTIARY OBJECTIONS TO DECLARATION OF BRENDA LIISTRO CASE NO. 3:07-CV-2133-JM-BLM

Case 3:07-cv-02133-JM-BLM

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Filed 11/13/2007

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evidence referenced above at the hearing on Plaintiff's Motion to Remand. Dated: November 13, 2007 Respectfully submitted, DEL MAR LAW GROUP, LLP

by s/John H. Donboli ___ JOHN H. DONBOLI E-mail: [email protected] JL SEAN SLATTERY Attorneys for Plaintiff DAVID PAZ, an individual and on behalf of all others similarly situated

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EVIDENTIARY OBJECTIONS TO DECLARATION OF BRENDA LIISTRO CASE NO. 3:07-CV-2133-JM-BLM