Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 1 of 77
CM-010 

A HORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar numbe§ and addres1 FOR COURT USE ONLY 

-Larry W. Lee (SBN 228175) I Nick Rosenthal ( BN 268 97) 

DIVERSITY LAW GROUP 

515 S. Figueroa Street, Suite 1250 

Los Angeles, California 90071 

TELEPHONENO. ~13) 488-6555 FAXNO. 

ATTORNEY FOR (NameJ lain tiff Roderick Magadia 

(213) 488-6554 

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA 

STREET ADDRESS: 191 N. First Street 

MAILING ADDRESS: 

CITY AND ZIP CODE: San Jose, CA 95113 

BRANCH NAME: Downtown Superior Comi 

CASE NAME: 

Roderick Magadia v. Wal-Mati Associates, Inc. 

CIVIL CASE COVER SHEET Complex Case Designation CASE NUMBER: 

[{] Unlimited D Limited D Counter D (Amount (Amount Joinder 

demanded demanded is Filed with first appearance by defendant JUDGE: 

exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: 

Items 1-6 below must be completed (see instructions on page 2). 

1. Check one box below for the case type that best describes this case: 

Auto Tort Contract 

D Auto (22) D Breach of contract/warranty (06) 

D Uninsured motorist (46) D Rule 3.740 collections (09) 

Other Pl/PD/WO (Personal Injury/Property D Other collections (09) 

Damage/Wrongful Death) Tort D Insurance coverage (18) 

D Asbestos (04) D 

D Other contract (37) Product liability (24) Real Property 

D Medical malpractice (45) D 

D Other Pl/PD/WO (23) 

Non-Pl/PD/WO (Other) Tort 

D Business tort/unfair business practice (07) 

D Civil rights (08) 

D Defamation (13) 

D Fraud (16) 

D Intellectual property (19) 

Eminent domain/Inverse 

condemnation (14) 

D Wrongful eviction (33) 

D Other real property (26) 

Unlawful Detainer 

D Commercial (31) 

D Residential (32) 

D Drugs(38) 

D Professional negligence (25) Judicial Review 

D Other non-Pl/PD/WO tort (35) D Asset forfeiture (05) 

Employment D Petition re: arbitration award (11) 

D Wrongful termination (36) D Writ of mandate (02) 

[2J Other employment (15) D Other judicial review (39) 

Provisionally Complex Civil Litigation 

(Cal. Rules of Court, rules 3.400-3.403) 

D Antitrust/Trade regulation (03) 

D Construction defect (10) 

D Mass tort (40) 

D Securities litigation (28) 

D Environmental/Toxic tort (30) 

D Insurance coverage claims arising from the 

above listed provisionally complex case types (41) 

Enforcement of Judgment 

D Enforcement of judgment (20) 

Miscellaneous Civil Complaint 

D RIC0(27) 

D Other complaint (not specified above) (42) 

Miscellaneous Civil Petition 

D Partnership and corporate governance (21) 

D Other petition (not specified above) (43) 

2. This case W is LJ is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the 

factors requiring exceptional judicial management: 

a. D Large number of separately represented parties 

b. [2J Extensive motion practice raising difficult or novel 

issues that will be time-consuming to resolve 

c. [2J Substantial amount of documentary evidence 

d. [{]Large number of witnesses 

e. D Coordination with related actions pending in one or more courts 

in other counties, states, or countries, or in a federal court 

f. D Substantial postjudgment judicial supervision 

3. Remedies sought (check all that apply): a.[2] monetary b. D nonmonetary; declaratory or injunctive relief c. D punitive 

4. Number of causes of action (specify): Four ( 4) 

5. This case [2J is D is not a class action suit. 

6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) 

Date: December 2, 2016 ~:;;;::::::::::::;;;;:;;:::;;:;-.. ~:~ --=---~····-----

Larry W · Lee <TYPE oR PRINT NAME> ~ (SIGNATURE oF PA67oRTu~,;~~oR PARTY) 

NOTICE • Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed 

under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result 

in sanctions. 

• File this cover sheet in addition to any cover sheet required by local court rule. 

• If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all 

other parties to the action or proceeding. 

• Unless this is a collections case under rule 3.7 40 or a complex case, this cover sheet will be used for statistical purposes onlv. 

15age 1 of 2 

Form Adopted for Mandatory Use 

Judicial Council of California 

CM-010 [Rev. July 1, 2007) 

CIVIL CASE COVER SHEET Cal. Rules of Court, rules 2.30, 3.220, 3.400--3.403, 3.740; 

Cal. Standards of Judicial Administration, std. 3.10 

~1w.courtinfo.ca.gov 

16CV303387

E-FILED

12/2/2016 9:48:46 AM

Clerk of Court

Superior Court of CA, 

County of Santa Clara

16CV303387

Reviewed By:R. Walker

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 2 of 77
INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET 

CM-010 

To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must 

complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile 

statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check 

one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, 

check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. 

To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover 

sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, 

its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. 

To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money 

owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in 

which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort 

damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of 

attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general 

time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections 

case will be subject to the requirements for service and obtaining a judgment in rule 3.740. 

To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the 

case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by 

completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the 

complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the 

plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that 

the case is complex. CASE TYPES AND EXAMPLES 

Auto Tort 

Auto (22)-Personal Injury/Property 

Damage/Wrongful Death 

Uninsured Motorist (46) (if the 

case involves an uninsured 

motorist claim subject to 

arbitration, check this item 

instead of Auto) 

Other Pl/PD/WO (Personal Injury/ 

Property Damage/Wrongful Death) 

Tort 

Asbestos (04) 

Asbestos Property Damage 

Asbestos Personal Injury/ 

Wrongful Death 

Product Liability (not asbestos or 

toxic/environmental) (24) 

Medical Malpractice (45) 

Medical MalpracticePhysicians & Surgeons 

Other Professional Health Care 

Malpractice 

Other Pl/PD/WD (23) 

Premises Liability (e.g., slip 

and fall) 

Intentional Bodily Injury/PD/WO 

(e.g., assault, vandalism) 

Intentional Infliction of 

Emotional Distress 

Negligent Infliction of 

Emotional Distress 

Other Pl/PD/WD 

Non-Pl/PD/WO (Other) Tort 

Business Tort/Unfair Business 

Practice (07) 

Civil Rights (e.g., discrimination, 

false arrest) (not civil 

harassment) (08) 

Defamation (e.g., slander, libel) 

(13) 

Fraud (16) 

Intellectual Property (19) 

Professional Negligence (25) 

Legal Malpractice 

Other Professional Malpractice 

(not medical or legal) 

Other Non-Pl/PD/WO Tort (35) 

Employment 

Wrongful Termination (36) 

Other Employment (15) 

CM-010 [Rev. July 1, 2007] 

Contract 

Breach of Contract/Warranty (06) 

Breach of Rental/Lease 

Contract (not unlawful detainer 

or wrongful eviction) 

Contract/Warranty Breach-Seller 

Plaintiff (not fraud or negligence) 

Negligent Breach of Contract/ 

Warranty 

Other Breach of Contract/Warranty 

Collections (e.g., money owed, open 

book accounts) (09) 

Collection Case-Seller Plaintiff 

Other Promissory Note/Collections 

Case 

Insurance Coverage (not provisionally 

complex) (18) 

Auto Subrogation 

Other Coverage 

Other Contract (37) 

Contractual Fraud 

Other Contract Dispute 

Real Property 

Eminent Domain/Inverse 

Condemnation (14) 

Wrongful Eviction (33) 

Other Real Property (e.g., quiet title) (26) 

Writ of Possession of Real Property 

Mortgage Foreclosure 

Quiet Title 

Other Real Property (not eminent 

domain, landlord/tenant, or 

foreclosure) 

Unlawful Detainer 

Commercial (31) 

Residential (32) 

Drugs (38) (if the case involves illegal 

drugs, check this item; otherwise, 

report as Commercial or Residential) 

Judicial Review 

Asset Forfeiture (05) 

Petition Re: Arbitration Award (11) 

Writ of Mandate (02) 

Writ-Administrative Mandamus 

Writ-Mandamus on Limited Court 

Case Matter 

Writ-Other Limited Court Case 

Review 

Other Judicial Review (39) 

Review of Health Officer Order 

Notice of Appeal-Labor 

Commissioner A eals 

CIVIL CASE COVER SHEET 

Provisionally Complex Civil Litigation (Cal. 

Rules of Court Rules 3.400-3.403) 

Antitrust/Trade Regulation (03) 

Construction Defect (10) 

Claims Involving Mass Tort (40) 

Securities Litigation (28) 

Environmentalffoxic Tort (30) 

Insurance Coverage Claims 

(arising from provisionally complex 

case type listed above) (41) 

Enforcement of Judgment 

Enforcement of Judgment (20) 

Abstract of Judgment (Out of 

County) 

Confession of Judgment (nondomestic relations) 

Sister State Judgment 

Administrative Agency Award 

(not unpaid taxes) 

Petition/Certification of Entry of 

Judgment on Unpaid Taxes 

Other Enforcement of Judgment Case 

Miscellaneous Civil Complaint 

RICO (27) 

Other Complaint (not specified 

above) (42) 

Declaratory Relief Only 

Injunctive Relief Only (nonharassment) 

Mechanics Lien 

Other Commercial Complaint 

Case (non-tort/non-complex) 

Other Civil Complaint 

(non-tort/non-complex) 

Miscellaneous Civil Petition 

Partnership and Corporate 

Governance (21) 

Other Petition (not specified 

above) (43) 

Civil Harassment 

Workplace Violence 

Elder/Dependent Adult 

Abuse 

Election Contest 

Petition for Name Change 

Petition for Relief From Late 

Claim 

Other Civil Petition 

Page 2 of 2 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 3 of 77
Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 4 of 77
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DIVERSITY LAW GROUP, P.C. 

Larry W. Lee, State Bar No. 228175 

E-mail: lwlee@diversitylaw.com 

Nicholas Rosenthal, State Bar No. 268297 

E-mail: nrosenthal@diversitylaw.com 

515 S. Figueroa St., Suite 1250 

Los Angeles, California 90071 

Telephone: (213) 488-6555 

Facsimile: (213) 488-6554 

POLARIS LAW GROUP LLP 

William L. Marder, State Bar No. 170131 

E-mail: bill@polarislawgroup.com 

501 San Benito Street, Suite 200 

Hollister, California 95023 

Telephone: (831) 531-4214 

Facsimile: (831) 634-0333 

Dennis S. Hyun (State Bar No. 224240) 

E-mail: dhyun@hyunlegal.com 

HYUN LEGAL, APC 

515 S. Figueroa St., Suite 1250 

Los Angeles, California 90071 

(213) 488-6555 

(213) 488-6554 facsimile 

Attorneys for Plaintiff and the Class 

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF SANTA CLARA 

RODERICK MAGADIA, individually and on 

behalf of all those similarly situated, 

Plaintiff, 

vs. 

WAL-MART AS SOCIA TES, INC., a Delaware 

corporation; WAL-MART STORES, INC., a 

Delaware corporation; and DOES 1 through 50, 

inclusive, 

Defendants. 

-1-

Case No. 

PLAINTIFF'S CLASS ACTION 

COMPLAINT FOR DAMAGES FOR: 

(1) VIOLATION OF LABOR CODE§§ 

226.7 AND 512; 

(2) VIOLATION OF LABOR CODE§ 

226; 

(3) VIOLATION OF BUS. & PROF. 

CODE§ 17200, ET SEQ.; AND 

(4) VIOLATION OF LABOR CODE§ 

2698, ET SEQ. 

(DEMAND OVER $25,000) 

PLAINTIFF'S CLASS ACTION COMPLAINT FOR DAMAGES 

16CV303387

E-FILED

12/2/2016 9:48:46 AM

Clerk of Court

Superior Court of CA, 

County of Santa Clara

16CV303387

Reviewed By:R. Walker

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 5 of 77
1 Comes now Plaintiff Roderick Magadia ("Plaintiff'), an individual, by and through his attorneys 

2 ofrecord, hereby alleges and complains against Defendants Wal-Mart Stores, Inc. and Wal-Mart 

3 Associates, Inc. (collectively, "Walmart" or the "Company"), and Does 1 through 50 (collectively, 

4 "Defendants") as follows: 

5 JURISDICTION AND VENUE 

6 1. This Court has jurisdiction over the violations of the California Labor Code§§ 201-203, 

7 226, 226.7, 512, and 558. 

8 2. Venue is proper in Santa Clara County because Plaintiff worked for Defendant in Santa 

9 Clara County. 

10 PARTIES 

11 3. Walmart is a national retailer with locations throughout the United States, including in 

1 ?. Santa Clara County, California. 

13 4. On or about June 17, 2008, Plaintiff began employment with the Company as a non14 exempt employee at its store in San Jose, California. On or about September 16, 2016, Plaintiffs 

15 employment with the Company ended. 

16 DOE DEFENDANTS 

17 5. Plaintiff does not know the true names or capacities, whether individual, partner or 

18 corporate, of the Defendants sued herein as Does 1 through 50, inclusive, and for that reason, said 

19 Defendants are sued under such fictitious names, and Plaintiff prays for leave to amend this complaint 

20 when the true names and capacities are known. Plaintiff is informed and believes and, based thereon 

21 alleges, that each of said fictitious Defendants was responsible in some way for the matters alleged 

22 herein and proximately caused Plaintiff to be subject to the illegal employment practices, wrongs and 

23 injuries complained of herein. 

24 AGENCY STATUS OF EACH DEFENDANT 

25 6. At all times herein mentioned, each of said Defendants participated in the doing of the 

26 acts hereinafter alleged to have been done by the named Defendants; and furthermore, the Defendants, 

27 and each of them, were the agents, servants and employees of each of the other Defendants, as well as 

28 the agents of all Defendants, and at all times herein mentioned, were acting within the course and scope 

-2-

PLAINTIFF'S CLASS ACTION COMPLAINT FOR DAMAGES 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 6 of 77
1 of said agency and employment. 

2 7. Plaintiff is informed and believes and, based thereon alleges, that at all times material 

3 hereto, each of the Defendants named herein was the agent, employee, alter ego and/or joint venturer of, 

4 or working in concert with each of the other co-Defendants and was acting within the course and scope 

5 of such agency, employment, joint venture, or concerted activity. To the extent said acts, conduct, and 

6 omissions were perpetrated by certain Defendants, each of the remaining Defendants confirmed and 

7 ratified said acts, conduct, and omissions of the acting Defendants. 

8 8. At all times herein mentioned, Defendants, and each of them, were members of, and 

9 engaged in, a joint venture, partnership and common enterprise, and acting within the course and scope 

10 of, and in pursuance of, said joint venture, partnership and common enterprise. 

11 9. At all times herein mentioned, the acts and omissions of various Defendants, and each of 

12 them, concmTed and contributed to the various acts and omissions of each and all of the other 

13 Defendants in proximately causing the injuries and damages as herein alleged. At all times herein 

14 mentioned, Defendants, and each of them, ratified each and every act or omission complained of herein. 

15 At all times herein mentioned, the Defendants, and each of them, aided and abetted the acts and 

16 omissions of each and all of the other Defendants in proximately causing the damages as herein alleged. 

17 CLASS ALLEGATIONS 

18 10. On or about June 17, 2008, Plaintiff began employment with the Company as a non19 exempt employee at its store in San Jose, California. On or about September 16, 2016, Plaintiff's 

20 employment with the Company ended. Plaintiff is and was a victim of the policies, practices and 

21 customs of Defendant complained of in this action in ways that have deprived Plaintiff of the rights 

22 guaranteed by California Labor Code§§ 201-203, 226, 226.7, 512, and 558, and the Unfair Competition 

23 Law (the "UCL"), California Business and Professions Code§ 17200 et seq. 

24 11. Class Definition: The named individual Plaintiff brings this action on behalf of himself 

25 and the Class pursuant to California Code of Civil Procedure § 382. Plaintiff proposes the following 

26 classes: ( 1) all current and former California non-exempt employees of Defendants who received non27 discretionary remuneration, including "MYSHARE INCT," and was paid any meal period premium 

28 payments in the same period that the non-discretionary remuneration was earned, at any time between 

-3-

PLAINTIFF'S CLASS ACTION COMPLAINT FOR DAMAGES 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 7 of 77
December 2, 2012, through the present (the "Meal Period Regular Rate Class"); (2) all current and 

2 former California non-exempt employees of Defendants who received non-discretionary remuneration, 

3 including "MYSHARE INCT," and was paid any meal period premium payments in the same period 

4 that the non-discretionary remuneration was earned, at any time between December 2, 2015, through the 

5 present (the "Meal Period Regular Rate Wage Statement Sub-Class"); (3) all cunent and former 

6 California non-exempt employees of Defendants who received "OVERTIME/IN CT," at any time 

7 between December 2, 2015, through the present (the "OVERTIME/INCT Class"); and (4) all former 

8 non-exempt employees who worked for Defendants in the State of California and whose employment 

9 terminated (whether voluntarily or involuntarily) at any time from December 2, 2015 to the present (the 

10 "Final Wage Statement Class"). The Wage Statement Class and Regular Rate Class shall hereinafter be 

11 collectively refe1Ted to as the "Class" or "Class Members." 

12 12. Numerosity: The members of the Class are so numerous thatjoinder of all members 

13 would be impractical, if not impossible. The identity of the members of the Class is readily 

14 ascertainable by review of Defendant's records, including payroll records. Plaintiff is informed and 

15 believe, and based thereon alleges, that Defendant: (a) failed to provide proper payroll records in 

16 violation of Labor Code § 226; (b) failed to include all remuneration, including non-discretionary 

17 remuneration, in the regular rate of pay for purposes of calculating meal period premium pay; and ( c) 

18 engaged in unfair business practices in violation of the California Labor Code, the applicable IWC Wage 

19 Orders and the UCL. 

20 13. Adequacy of Representation: The named Plaintiff is fully prepared to take all 

21 necessary steps to represent fairly and adequately the interests of the Class defined above. Plaintiffs 

22 attorneys are ready, willing and able to fully and adequately represent the Class and individual Plaintiff. 

23 Plaintiffs attorneys have prosecuted and settled wage-and-hour class actions in the past and cunently 

24 have a number of wage-and-hour class actions pending in California courts. 

25 14. Defendant uniformly administered a corporate policy, practice of: (a) failing to pay to 

26 Plaintiff and the Class all meal break premiums owed; (b) failing to provide accurate itemized wage 

27 statements; and (c) engaging in Unfair Business Practices, all in violation ofIWC Wage Order No 7-

28 2001. 

-4-

PLAINTIFF'S CLASS ACTION COMPLAINT FOR DAMAGES 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 8 of 77
15. Plaintiff is informed and believes and based thereon alleges that Defendant, in violation 

2 of California Labor Code§§ 201-203, 226, 226.7, 512, and 558, had a consistent and uniform policy, 

3 practice of willfully failing to comply with Labor Code § 203. Plaintiff and other members of the Class 

4 did not secret or absent themselves from Defendant, nor refuse to accept the earned and unpaid wages 

5 from Defendant. Accordingly, Defendant is liable for waiting time compensation for the unpaid wages 

6 to separated employees pursuant to California Labor Code § 203. 

7 16. Common Question of Law and Fact: There are predominant common questions of law 

8 and fact and a community of interest amongst Plaintiff and the claims of the Class concerning 

9 Defendant: (a) failing to provide proper payroll records in violation of Labor Code § 226; (b) failing to 

10 include all remuneration, including non-discretionary remuneration, in the regular rate of pay for 

11 purposes of calculating meal period premium pay; and ( c) engaging in unfair business practices in 

12 violation of the California Labor Code, the applicable IWC Wage Orders and the UCL. 

13 17. Typicality: The claims of Plaintiff are typical of the claims of all members of the Class. 

14 Plaintiff is a member of the Class and has suffered the alleged violations of California Labor Code § § 

15 201-203, 226, 226.7, 512, and 558. As with other non-exempt California employees, Plaintiff was not 

16 provided proper and accurate itemized wage statements. Specifically, the Company violated§ 226 

17 failing to identify the correct rates of pay and number of hours worked, for the "OVERTIME/INCT," 

18 item of pay, which is an overtime wage payment. The Company also did not include the correct rate of 

19 premium pay for missed meal periods on Plaintiff's wage statements and the wage statements of other 

20 non-exempt employees. The Company also violated Labor Code § 226 by not providing Plaintiff and 

21 other employees with an accurate itemized wage statement with their last pay checks. Instead the 

22 Company provided only a "Statement of Final Pay," which, among other violations, did not specify the 

23 inclusive dates for which Plaintiff and other employees were being paid in violation of Labor Code § 

24 226(a)(6). Therefore, Defendants violated Labor Code§ 226 by not providing the requisite itemized 

25 wage statements to Plaintiff and other class members. Additionally, Plaintiff earned non-discretionary 

26 incentive pay, including "MYSHARE INCT," which was not factored into the regular rate of pay for 

27 purposes of paying meal period premium pay. Instead, during pay periods in which Plaintiff earned 

28 non-discretionary remuneration, Defendants improperly paid the meal premium pay at the base rate of 

-5-

PLAINTIFF'S CLASS ACTION COMPLAINT FOR DAMAGES 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 9 of 77
1 pay. Therefore, Plaintiff is a member of the Class and have suffered the alleged violations of California 

2 Labor Code§§ 226, 226.7 and 512. 

3 18. The Labor Code and regulations upon which Plaintiff base these claims are broadly 

4 remedial in nature. These laws and labor standards serve an important public interest in establishing 

5 minimum working conditions and standards in California. These laws and labor standards protect the 

6 average working employee from exploitation by employers who may seek to take advantage of superior 

7 economic and bargaining power in setting onerous terms and conditions of employment. 

8 19. The nature of this action and the format oflaws available to Plaintiff and members of the 

9 Class identified herein make the class action format a particularly efficient and appropriate procedure to 

10 redress the wrongs alleged herein. If each employee were required to file an individual lawsuit, the 

11 corporate Defendant would necessarily gain an unconscionable advantage since it would be able to 

12 exploit and overwhelm the limited resources of each individual plaintiff with their vastly superior 

13 financial and legal resources. Requiring each Class member to pursue and individual remedy would also 

14 discourage the assertion of lawful claims by employees who would be disinclined to file an action 

15 against their former and/or cun-ent employer for real and justifiable fear of retaliation and permanent 

16 damage to their careers at subsequent employment. 

17 20. The prosecution of separate actions by the individual Class members, even if possible, 

18 would create a substantial risk of (a) inconsistent or varying adjudications with respect to individual 

19 Class members against the Defendant and which would establish potentially incompatible standards of 

20 conduct for the Defendant, and/or (b) adjudications with respect to individual Class members which 

21 would, as a practical matter, be dispositive of the interest of the other Class members not parties to the 

22 adjudications or which would substantially impair or impede the ability of the Class members to protect 

23 their interests. Further, the claims of the individual members of the Class are not sufficiently large to 

24 warrant vigorous individual prosecution considering all of the concomitant costs and expenses. 

25 21. Such a pattern, practice and uniform administration of corporate policy regarding illegal 

26 employee compensation described herein is unlawful and creates an entitlement to recovery by the 

27 Plaintiff and the Class identified herein, in a civil action, for unpaid overtime and minimum wages, 

28 waiting time wages pursuant to Labor Code§ 203, all damages and or penalties pursuant to Labor Code 

-6-

PLAINTIFF'S CLASS ACTION COMPLAINT FOR DAMAGES 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 10 of 77
§ 226 including interest thereon, applicable penalties, reasonable attorney's fees, and costs of suit 

2 according to the mandate of California Labor Code §§ 226 and 558 and Code of Civil Procedure § 

3 1021.5. 

4 22. Proof of a common business practice or factual pattern, which the named Plaintiff 

5 experienced and is a representative of, will establish the right of each of the members of the Class to 

6 recovery on the causes of action alleged herein. 

7 23. The Class is commonly entitled to a specific fund with respect to the compensation 

8 illegally and unfairly retained by Defendant. The Class is commonly entitled to restitution of those 

9 funds being improperly withheld by Defendant. This action is brought for the benefit of the entire Class 

10 and will result in the creation of a common fund. 

11 FIRST CAUSE OF ACTION 

12 VIOLATION OF LABOR CODE§§ 226.7 AND 512 

13 (BY PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS) 

14 24. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 23 as though fully 

15 set forth herein. 

16 25. At all relevant times, Defendants failed in their affirmative obligation to ensure that 

17 Plaintiff, and other class members, had the opportunity to take and were provided with off-duty meal 

18 periods in accordance with the mandates of the California Labor Code and the applicable IWC Wage 

19 Order. Plaintiff and Class Members were suffered and permitted to work through legally required meal 

20 breaks and were denied the opportunity to take their full 30-minute off-duty meal breaks. As such, 

21 Defendants are responsible for paying premium compensation for missed meal periods pursuant to 

22 Labor Code§§ 226.7 and 512 and the applicable IWC Wage Order. Specifically, Labor Code§ 226.7(c) 

23 provides that "the employer shall pay the employee one additional hour of pay at the employee's regular 

24 rate of compensation for each workday the meal or rest or recovery period is not provided." Defendants, 

25 as a matter of corporate policy and procedure, regularly failed to pay the meal period premium at the 

26 correct rate of pay. Plaintiff and Class Members earned non-discretionary incentive pay, such as 

27 "MYSHARE INCT,'' which was not factored into the regular rate of pay for purposes of paying meal 

28 period premium pay. Instead, during pay periods in which Plaintiff and Class Members earned non-

-7-

PLAINTIFF'S CLASS ACTION COMPLAINT FOR DAMAGES 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 11 of 77
1 discretionary remuneration, Defendants improperly paid the meal premium pay at the base rate of pay. 

2 26. Plaintiff is informed and believe and based thereon alleges that Defendants willfully 

3 failed to include all remuneration, including non-discretionary remuneration, in the regular rate of pay 

4 for purposes of calculating meal period premium pay, as required by Labor Code§§ 226.7 and 512, and 

5 the applicable IWC Wage Order. Plaintiff further alleges that Plaintiff and similarly situated employees 

6 are owed wages for the meal period violations set forth above. 

7 27. Plaintiff is informed and believes, and based thereon allege, that Defendants' willful 

8 failure to provide all meal period premium pay and/or wages due and owing them upon separation from 

9 employment results in a continued payment of wages up to thirty (30) days from the time the wages 

10 were due. Therefore, Plaintiff and other members of the Class who have separated from employment 

11 are entitled to compensation pursuant to Labor Code§ 203. 

12 28. Such a pattern, practice and uniform administration of corporate policy as described 

13 herein is unlawful and creates an entitlement to recovery by the Plaintiff and Class Members identified 

14 herein, in a civil action, for the unpaid balance of the unpaid premium compensation pursuant to Labor 

15 Code§§ 201, 202, 203, 226.7 and 512, and the applicable IWC Wage Order, including interest thereon, 

16 penalties, and costs of suit. 

17 SECOND CAUSE OF ACTION 

18 VIOLATION OF LABOR CODE § 226 

19 (BY PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS) 

20 29. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 28 as though fully 

21 set forth herein. 

22 30. Defendants failed in their affirmative obligation to provide accurate itemized wage 

23 statements. Defendants, as a matter of policy and practice, did not provide accurate records in violation 

24 of Labor Code § 226. 

25 31. Plaintiff and the Class were paid hourly. As such, the wage statements should have 

26 complied with all of the enumerated requirements set forth in Labor Code§ 226(a). The wage 

27 statements provided to Plaintiff and the Class Members, however, failed to identify such information, 

28 including without limitation, the applicable number of hours worked and rates of pay, as well as all of 

-8-

PLAINTIFF'S CLASS ACTION COMPLAINT FOR DAMAGES 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 12 of 77
1 the wages owed for unpaid missed meal period premium pay. Specifically, the Company violated§ 226 

2 failing to identify the correct rates of pay and number of hours worked, including for the 

3 "OVERTIME/IN CT," item of pay, which is an overtime wage payment. The Company also did not 

4 include the correct rate of premium pay for missed meal periods on wage statements issued to Plaintiff 

5 and other non-exempt employees. The Company also violated Labor Code § 226 by not providing 

6 Plaintiff and other employees with an itemized wage statement with their last pay checks. Instead the 

7 Company provided only a "Statement of Final Pay," which, among other violations, did not specify the 

8 inclusive dates for which me and other employees were being paid in violation of Labor Code § 

9 226(a)(6). Therefore, Defendants violated Labor Code§ 226 by not providing the requisite itemized 

10 wage statements to Plaintiff and other class members. 

11 32. Such a pattern, practice and uniform administration of corporate policy as described 

12 herein is unlawful and creates an entitlement to recovery by the Plaintiff and the Class identified herein, 

13 in a civil action, for all damages or penalties pursuant to Labor Code § 226, including interest thereon, 

14 attorneys' fees, and costs of suit according to the mandate of California Labor Code § 226. 

15 THIRD CAUSE OF ACTION 

16 VIOLATIONS OF THE UCL, BUSINESS & PROFESSIONS CODE§ 17200, ET SEQ. 

17 (BY PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS) 

18 33. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 32 as though fully 

1 9 set forth herein. 

20 34. Defendants, and each of them, have engaged and continue to engage in unfair and 

21 unlawful business practices in California by practicing, employing and utilizing the employment 

22 practices outlined above, include, to wit, by failing to include all remuneration, including non23 discretionary remuneration, in the regular rate of pay for purposes of calculating meal period premium 

24 pay in violation of Labor Code§§ 226.7 and 512. 

25 35. Defendants' utilization of such unfair and unlawful business practices constitutes unfair, 

26 unlawful competition and provides an unfair advantage over Defendants' competitors. 

27 36. Plaintiff seeks individually and on behalf of all other members of the Class similarly 

28 situated, full restitution of monies, as necessary and according to proof, to restore any and all monies 

-9-

PLAINTIFF'S CLASS ACTION COMPLAINT FOR DAMAGES 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 13 of 77
1 withheld, acquired and/or converted by the Defendants by means of the unfair practices complained of 

2 herein. 

3 37. Plaintiff is informed and believes, and based thereon alleges, that at all times herein 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

mentioned Defendants have engaged in unlawful, deceptive and unfair business practices, as proscribed 

by California Business and Professions Code § 17200, et seq., including those set forth herein above 

thereby depriving Plaintiff and other members of the class the minimum working condition standards 

and conditions due to them under the California laws as specifically described therein. 

FOURTH CAUSE OF ACTION 

VIOLATION OF LABOR CODE SECTION 2698, ET SEQ. 

(AGAINST ALL DEFENDANTS BY PLAINTIFF AS PROXY FOR STATE) 

38. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 37 as though fully 

set forth herein 

3 9. Plaintiff brings this cause of action as a proxy for the State of California and in this 

capacity, seeks penalties on behalf of all Aggrieved Employees for Defendants' violations of Labor 

Code§§ 201-203, 226, 226.7 and 512, from October 4, 2015, through the present, arising from 

Defendants' failure to: (a) pay meal premium pay at the correct higher regular rate of pay by not 

factoring in all non-discretionary remuneration into the regular rate, including "MYSHARE-INCT"; and 

(b) identify the correct rates of pay and number of hours worked, including for the 

"OVERTIME/IN CT," item of pay, which is an overtime wage payment; (c) provide an accurate 

itemized wage statement with the final pay paid to separated employees, which, among other violations, 

did not specify the inclusive dates for which employees were being paid in violation of Labor Code § 

226(a)(6); pay all wages owed upon separation of employment. As such, Plaintiff has suffered the 

alleged violations of California Labor Code§§ 201-203, 226, 226.7, and 512. 

40. On or about October 4, 2016, Plaintiff sent written notice to the California Labor & 

Workforce Development Agency ("LWDA") of Defendants' violations of Labor Code§§ 201-203, 226, 

226.7, and 512 pursuant to Labor Code§ 2698, et seq., the Private Attorney General Act ("PAGA"). 

41. As of the date of this filing, the L WDA has not provided written notice regarding whether 

it intends to investigate the Labor Code violations set forth in Plaintiffs written notice and thus allowing 

-10-

PLAINTIFF'S CLASS ACTION COMPLAINT FOR DAMAGES 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 14 of 77
1 Plaintiff to proceed under PAGA against Defendants for said violations. Therefore, Plaintiff may seek 

2 any and all applicable penalties under PAGA. 

3 42. As such, pursuant to Labor Code § 2699(a), Plaintiff seeks recovery of any and all 

4 applicable civil penalties for Defendants' violation of Labor Code§§ 201-203, 226, 226.7, and 512, for 

5 the time periods described above, as a proxy for the State of California and on behalf of other Aggrieved 

6 Employees. 

7 PRAYER FOR RELIEF 

8 WHEREFORE, Plaintiff prays for judgment to be entered in his favor and against Defendants, 

9 and each of them, as follows: 

10 

11 

12 

13 

1. 

2. 

3. 

5. 

For an order certifying the proposed Class; 

For an order appointing Plaintiff as the representative of the Class; 

For an order appointing Counsel for Plaintiff as Class counsel; 

Upon the First Cause of Action, for wages owed at the correct meal period premium pay 

14 amount, for waiting time wages according to proof pursuant to California Labor Code§ 203, for interest 

15 and costs; 

16 6. Upon the Second Cause of Action, for penalties and/or damages pursuant to Labor Code 

1 7 § 226, et seq., for interest, costs, and for attorney's fees; 

18 7. Upon the Third Cause of Action, for restitution to Plaintiff and other similarly affected 

19 members of the general public of all funds unlawfully acquired by Defendant by means of any acts or 

20 practices declared by this Court to be in violation of Business and Professions Code § 17200 et seq.; 

21 

22 

23 

8. 

9. 

10. 

Upon the Fourth Cause of Action, for penalties as provided for pursuant to the PAGA; 

On all causes of action, for prejudgment interest at the prevailing legal rate; 

On all causes of action, for attorney's fees and costs as provided by California Labor 

24 Code§§ 226, and 558, and Code of Civil Procedure§ 1021.5 and for such other and further relief the 

25 Court may deem just and proper. 

26 

27 Ill 

28 /// 

11. Costs of suit; and 

-11-

PLAINTIFF'S CLASS ACTION COMPLAINT FOR DAMAGES 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 15 of 77
2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

1?. 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

12. Such other and further relief as the Court may deem proper. 

DATED: December 2, 2016 DIVERSITY LAW GROUP, P.C. 

Larry W. Lee 

Attorneys for Plaintiff and the Class 

-12-

PLAJNTIFF'S CLASS ACTJON COMPLAINT FOR DAMAGES 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 16 of 77
Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 17 of 77
SUMMONS 

(CITACION JUDICIAL) 

NOTICE TO DEFENDANT: 

(AV/SO AL DEMANDADO): 

WAL-MART ASSOCIATES, INC., a Delaware corporation; 

WAL-MART STORES, INC., a Delaware corporation; and DOES 1 

YOU ARE BEING SUED BY PLAINTIFF: through 50, inclusive 

(LO ESTA DEMANDANDO EL DEMANDANTE): 

RODERICK MAG AD IA, individually and on behalf of all those 

similarly situated 

FOR COURT USE ONLY 

(SOLO PARA USO DE LA CORTE) 

SUM-100 

NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information 

below. 

You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy 

served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your 

case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts 

Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask 

the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property 

may be taken without further warning from the court. 

There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney 

referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate 

these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California Courts Online Self-Help Center 

(www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and 

costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. 

;AV/SO! Lo han demandado. Si no responde dentro de 30 dias, la carte puede decidir en su contra sin escuchar su version. Lea la informaci6n a 

continuaci6n. 

Tiene 30 DIAS DE CALENDARIO despues de que le entreguen esta citaci6n y papeles /ega/es para presentar una respuesta par escrito en esta 

carte y hacer que se entregue una copia al demandante. Una carta o una /lamada telef6nica no lo protegen. Su respuesta par escrito tiene que estar 

en formato legal correcto si desea que procesen su caso en la carte. Es posible que ha ya un formulario que usted pueda usar para su respuesta. 

Puede encontrar estos formularios de la carte y mas informaci6n en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la 

biblioteca de /eyes de su condado o en la carte que le quede mas cerca. Si no puede pagar la cuota de presentaci6n, pida al secretario de la carte 

que le de un formulario de exenci6n de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso par incumplimiento y la carte le 

podra quitar su sue/do, dinero y biene'S sin mas advertencia. 

Hay otros requisitos legates. Es recomendable que /lame a un abogado inmediatamente. Si no conoce a un abogado, puede l/amar a un servicio de 

remisi6n a abogados. Si no puede pagar a un abogado, es posible que cumpla con las requisitos para obtener servicios legates gratuitos de un 

programa de servicios legates sin fines de lucro. Puede encontrar estos grupos sin fines de /ucro en el sitio web de California Legal Services, 

(www.lawhelpcalifornia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o poniendose en contacto con la carte o el 

colegio de abogados locales. AV/SO: Por fey, la carte tiene derecho a reclamar las cuotas y las costos exentos par imponer un gravamen sabre 

cualquier recuperaci6n de $10,000 6 mas de valor recibida mediante un acuerdo o una concesi6n de arbitraje en un caso de derecho civil. Tiene que 

pagar el gravamen de la carte antes de que la carte pueda desechar el caso. 

The name and address of the court is: 

(El nombre y direcci6n de la carte es): 

Superior Court of California County of Santa Clara 

191 N. First Street, San Jose, CA 95113 

CASE NUMBER: 

(Nilmero def Caso): 

The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: 

(El nombre, la direcci6n y el numero de te/efono de/ abogado de/ demandante, o de/ demandante que no tiene abogado, es): 

Larry W. Lee (SBN 228175)/Diversity Law Group,515 S. Figueroa St. #1250,LA, CA 90071,213-488-6555 

DATE: Clerk, by 

(Fecha) (Secretario) 

(For proof of service of this summons, use Proof of Service of Summons (form POS-010).) 

, Deputy 

(Adjunto) 

(Para prueba de entrega de esta citation use el formulario Proof of Service of Summons, (POS-010)). 

[SEAL] 

Form Adopted for Mandatory Use 

Judicial Council of California 

SUM-100 [Rev. July 1, 2009] 

NOTICE TO THE PERSON SERVED: You are served 

1. D as an individual defendant. 

2. CJ as the person sued under the fictitious name of (specify): 

3. D on behalf of (specify): 

under: CJ CCP 416.10 (corporation) 

CJ CCP 416.20 (defunct corporation) 

CJ CCP 416.40 (association or partnership) 

CJ other (specify): 

4. CJ by personal delivery on (date): 

SUMMONS 

D 

D 

D 

CCP 416.60 (minor) 

CCP 416.70 (conservatee) 

CCP 416.90 (authorized person) 

Pa e 1 of 1 

Code of Civil Procedure§§ 412.20, 465 

www.courtinfo.ca.gov 

16CV303387

E-FILED

12/2/2016 9:48:46 AM

Clerk of Court

Superior Court of CA, 

County of Santa Clara

16CV303387

Reviewed By:R. Walker

12/2/2016 /s/ R. Walker

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 18 of 77
Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 19 of 77
Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 20 of 77
Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 21 of 77
Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 22 of 77
1

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA 

191 N. FIRST STREET 

SAN JOSE, CA 95113-1090

TO: FILE COPY 

RE: Magadia v. Wal-Mart Associates, Inc., et al.

CASE NUMBER: 16CV303387

ORDER DEEMING CASE COMPLEX AND STAYING DISCOVERY

 WHEREAS, the Complaint was filed by Plaintiff RODERICK MAGADIA(“Plaintiff”) in the Superior 

Court of California, County of Santa Clara, on December 2, 2016 and assigned to Department 1 

(Complex Civil Litigation), the Honorable Peter H. Kirwan presiding, pending a ruling on the 

complexity issue; 

IT IS HEREBY ORDERED that: 

The Court determines that the above-referenced case is COMPLEX within the meaning of 

California Rules of Court 3.400. The matter remains assigned, for all purposes, including discovery 

and trial, to Department 1 (Complex Civil Litigation), the Honorable Peter H. Kirwan presiding. 

 The parties are directed to the Electronic Filing and Service Standing Order and to the 

Guidelines for the Complex Civil Litigation Department, copies of which may be downloaded from 

http://www.scscourt.org/forms_and_filing/efiling.shtml. 

 Electronic service under this Order shall be construed by the Court and all parties to be 

equivalent to personal service. The two court days extension of time for electronic service under 

CCP § 1010.6(a)(4) does not apply. Any document for which service has not been completed by 

5:00 p.m. is deemed served the following business day. 

All parties are hereinafter ordered to submit to the Court’s E-Filing website digital copies of all 

documents that were previously manually filed prior to the entry of this Order. 

Pursuant to California Rules of Court, Rule 3.254, the creation and maintenance of the Master 

Service List shall be under the auspices of (1) Plaintiff RODERICK MAGADIA, as the first-named party 

in the Complaint, and (2) the first-named party in each Cross-Complaint, if any. 

 Pursuant to Government Code section 70616(c), each party’s complex case fee is due within 

ten (10) calendar days of this date. 

Plaintiff shall serve a copy of this Order on all parties forthwith and file a proof of service within 

seven (7) days of service. 

Any party objecting to the complex designation must file an objection and proof of service 

within ten (10) days of service of this Order. Any response to the objection must be filed within 

seven (7) days of service of the objection. The Court will make its ruling on the submitted pleadings. 

The Case Management Conference remains set for March 24, 2017 at 10:00 a.m. in 

Department 1 and all counsel are ordered to attend in person. 

E-FILED

12/6/2016 3:36:44 PM

Clerk of Court

Superior Court of CA, 

County of Santa Clara

16CV303387

Reviewed By:R. Walker

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 23 of 77
2

Counsel for all parties are ordered to meet and confer in person at least 15 days prior to the 

First Case Management Conference and discuss the following issues: 

1. Issues related to recusal or disqualification; 

2. Issues of law that, if considered by the Court, may simplify or further resolution of the case, 

including issues regarding choice of law; 

3. Appropriate alternative dispute resolution (ADR), for example, mediation, mandatory 

settlement conference, arbitration, mini-trial; 

4. A plan for preservation of evidence and a uniform system for identification of documents 

throughout the course of this litigation; 

5. A plan for document disclosure/production and additional discovery; which will generally 

be conducted under court supervision and by court order; 

6. Whether it is advisable to address discovery in phases so that information needed to 

conduct meaningful ADR is obtained early in the case (counsel should consider whether 

they will stipulated to limited merits discovery in advance of certification proceedings), 

allowing the option to complete discovery if ADR efforts are unsuccessful; 

7. Any issues involving the protection of evidence and confidentiality; 

8. The handling of any potential publicity issues; 

Counsel for Plaintiff is to take the lead in preparing a Joint Case Management Conference 

Statement to be filed fifteen calendars days prior to the First Case Management Conference, and 

include the following: 

1. A Statement as to whether additional parties are likely to be added and a proposed 

date by which all parties must be served; 

2. Service lists identifying all primary and secondary counsel, firm names, addresses, 

telephone numbers, email addresses and fax numbers for all counsel; 

3. A description of all discovery completed to date and any outstanding discovery as of the 

date of the conference; 

4. Applicability and enforceability of arbitration clauses, if any; 

5. A list of all related litigation pending in other courts, including Federal Court, and a brief 

description of any such litigation, and a statement as to whether any additional related 

litigation is anticipated (CRC 3.300); 

6. A description of factual and legal issues – the parties should address any specific contract 

provisions the interpretation of which may assist in resolution of significant issues in the 

case; 

7. The parties’ tentative views on an ADR mechanism and how such mechanism might be 

integrated into the course of the litigation; 

8. Whether discovery should be conducted in phases or limited; and if so, the order of 

phasing or types of limitations of discovery. If this is a class action lawsuit, the parties 

should address the issue of limited merits discovery in advance of class certification 

motions. 

To the extent the parties are unable to agree on the matters to be addressed in the Joint 

Case Management Conference Statement, the positions of each party or of various parties should 

be set forth separately and attached to this report as addenda. The parties are encouraged to 

propose, either jointly or separately, any approaches to case management they believe will 

promote the fair and efficient handling of this case. The Court is particularly interested in identifying 

potentially dispositive or significant threshold issues the early resolution of which may assist in moving 

the case toward effective ADR and/or a final disposition. 

If this is a class action lawsuit, a copy of the Court’s Guidelines for Motions relating to Class 

Certification is attached to this Order. The Court may set a briefing schedule for Plaintiff’s class 

certification motion at the time of the conference. 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 24 of 77
3

Pending further order of this Court, the service of discovery and the obligation to respond to 

any outstanding discovery is stayed. However, Defendant(s) shall file a Notice of Appearance for 

purposes of identification of counsel and preparation of a service list. The filing of such a Notice of 

Appearance shall be without prejudice to the later filing of a motion to quash to contest jurisdiction. 

Parties shall not file or serve responsive pleadings, including answers to the complaint, motions to 

strike, demurrers, motions for change of venue and cross-complaints until a date is set at the First 

Case Management Conference for such filings and hearings. 

This Order is issued to assist the Court and the parties in the management of this “Complex” 

case through the development of an orderly schedule for briefing and hearings. This Order shall not 

preclude the parties from continuing to informally exchange documents that may assist in their 

initial evaluation of the issues presented in this Case. 

Plaintiff shall serve a copy of this Order on all the parties in this matter forthwith. 

SO ORDERED. 

Date: December 6, 2016 Hon. Peter H. Kirwan 

 Judge of the Superior Court 

If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the 

American with Disabilities Act, please contact the Court Administrator’s office at (408) 882-2700, or use the Court’s TDD line, 

(408) 882-2690 or the Voice/TDD California Relay Service, (800) 735-2922. 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 25 of 77
Guidelines for Motions relating to Class Certification 

Department 1 – Complex Civil Litigation 

1

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GUIDELINES FOR MOTIONS RELATING TO CLASS CERTIFICATION

DEPARTMENT 1 – COMPLEX CIVIL LITIGATION

The party moving for or against class certification must present in the moving papers admissible

evidence, as required by applicable law, establishing that the elements for certification are, or 

are not, present. 

All facts other than purely rebuttal matters upon which the moving party will rely in the hearing 

must be set out in evidence submitted with the notice of motion and moving papers. 

Each party should address all elements relevant to deciding the appropriateness of class 

certification. The list of elements set forth below is offered by the Court as a general summary 

and is not intended to supplant substantive law. 

1. Commonality and Predominance 

a. The class definition, including a statement of criteria that putative class members 

must possess to be eligible for class membership 

b. A description/definition of proposed subclasses, if any 

c. Those issues of law which are common to all class members 

d. Those issues of law which are unique to one or more class members but which 

must be presented at trial. In describing these unique issues of law, the segments 

of the class to which they are applicable should be described with a statement of 

the number within the class to whom each unique issue applies 

e. Whether, and if so how, common issues of law predominate 

f. Those issues of fact which are common to all class members 

g. Those issues of fact which are unique to one or more class members but which 

must be presented at trial. In describing these unique issues of fact, the segments 

of the class to which they are applicable should be described with a statement of 

the number within the class to whom each unique issue applies 

h. Whether, and if so how, common issues of fact predominate 

i. Conflicts, if any, between class members 

2. Ascertainability 

a. The manner in which and the time when the individual class members will be 

identified if such identification is contemplated 

3. Numerosity 

a. The approximate number of persons in the class, and if there are subclasses, the 

approximate number of persons in each subclass 

b. The basis for the above approximations 

c. The general geographic location[s] of the class members. If the class is not 

confined to the state of California, the description should include those locations 

outside California where class members are located 

d. Whether, and if so why, joinder is impracticable 

4. Typicality 

a. Why the claims and status of each of the proposed class representative[s] are 

typical of those of the proposed class or of the proposed subclass 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 26 of 77
Guidelines for Motions relating to Class Certification 

Department 1 – Complex Civil Litigation 

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28

b. Factual and/or legal differences, if any, in the representative’s status as a class 

member and those of any other persons within the class. If there are subclasses, 

a factual statement of the subclass of which the representative is a member 

c. Unique legal and/or factual issues, if any, pertaining to the representative[s] 

which must be litigated 

d. Conflicts, if any, between the class representative[s] and the class members 

5. Adequacy 

a. The adequacy of class counsel, including the ability of class counsel to represent 

class members with conflicting claims or interest 

b. The adequacy of the class representative[s], including the ability of the class 

representative[s] to serve as fiduciaries for class members with conflicting or 

inconsistent claims or interests 

c. The issues of law and/or fact which must be litigated between class members 

6. Substantial Benefits/Superiority 

a. Procedures alternative to a class action which might be used to adjudicate the 

issues involved in the action 

b. Why a class action is, or is not, procedurally superior to each alternative 

procedure, unless superiority is not an element of certifying that cause of action, 

including a discussion of the ability of the Court to manage the alternative 

proceedings in relation to its ability to manage the conduct of the class action 

c. Whether there are substantial benefits to the Court, the parties, and/or the public 

to proceeding as a class action 

7. Notice 

a. Counsel requesting class certification should provide specifics regarding 

necessary notice to class members and the methods proposed for giving notice. 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 27 of 77
Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 28 of 77
POS-010 

ATTORNEY OR PARTY v.ITHOUT ATTORNEY (Name. Stalll Bar number. and adc'ress) FOR COUllT USE OHi. Y 

DIVERSITY LAW GROUP, P.C. 

~Larry W. Lee, Esq. (SBN 228175); Nicholas Rosenthal, Esq. (SBN 268297) 

515 South Figueroa Street, Suite 1250 

Los Angeles, California 90071 

TELEPHONE NO: (213) 488-6555 FAX NO {Optional) (2 J 3) 488-6554 

E-MAIL AOOREss 1op1ionaJJ: lwlee@diversitylaw.com; nrosenthal@diversitylaw.com 

ATTORNEYFOR(Name): Plaintiff and the Class 

SUPERIOR COURT OF CALIFORNIAFCOUNTY OF SANT A CLARA 

STREET ADDREss 191 North irst Street 

MAILING ADDRESS: 

CITY AND ZIP CODE: San Jose, California 95113 

BRANCH NAME: DOWNTOWN SUPERIOR COURT 

PLAINTIFF/PETITIONER: RODERICK MAGADIA, etc. CASE NUMBER· 

DEFENDANT/RESPONDENT: WAL-MART ASSOCIATES, INC., etc.; et al. 

16CV303387 

Rel. No 01 File No . 

PROOF OF SERVICE OF SUMMONS l398870K 

(Separate proof of service is required for each party served.) 

1. At the time of service I was at least 18 years of age and not a party to this action. 

2. I served copies of: 

a. W summons 

b. m complaint 

c. D Alternative Dispute Resolution {ADR) package 

d. [L] Civil Case Cover Sheet (served in complex cases only) 

e. D cross-complaint 

f. D other (specify documents): 

3. a. Party served (specify name of party as shown on documents served): 

WAL-MART ASSOCIATES, INC., a Delaware corporation 

b. [I] Person {other than the party in item 3a) served on behalf of an entity or as an authorized agent {and not a person 

under item 5b on whom substituted service was made) (specify name and relationship to the party named in item 3a): 

CT Corporation System, Agent, Received by Daisy Montenegro, Process Specialist 

4. Address where the party was served: 

818 West 7th Street, Suite 930, Los Angeles, California 90017 

5. I served the party (check proper box) 

a. [{] by personal service. I personally delivered the documents listed in item 2 to the party or person authorized to 

receive service of process for the party {1) on (date): 12/06/2016 (2) at (time): 9 :05 a.m. 

b. D by substituted service. On (date): at (time): I left the documents listed in item 2 with or 

in the presence of (name and title or relationship to person indicated in item 3): 

{ 1) D (business) a person at least 18 years of age apparently in charge at the office or usual place of business 

of the person to be served. I informed him or her of the general nature of the papers. 

{2) D (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual 

place of abode of the party. I informed him or her of the general nature of the papers. 

(3) D (physical address unknown) a person at least 18 years of age apparently in charge at the usual mailing 

address of the person to be served, other than a United States Postal Service post office box. I informed 

him or her of the general nature of the papers. 

(4) D I thereafter mailed {by first-class, postage prepaid) copies of the documents to the person to be served 

at the place where the copies were left {Code Civ. Proc .. § 41 j.20~. I mailed the documents on 

(date): from (city): or a declaration of mailing is attached. 

(5) D I attach a declaration of diligence stating actions taken first to attempt personal service. 

F0tm Adcplad lot MandalOty U$0 

Juclldal Ccunc:il of Callfomia 

POS-010 [Rov. January 1. 2007] 

PROOF OF SERVICE OF SUMMONS 

Pago 1 of2 

Codo of Civil Procedure.§ 417 10 

Amnrlaln Laga1Ne1, Inc 

www.FormsWtltldlow.com 

E-FILED

12/9/2016 4:10:02 PM

Clerk of Court

Superior Court of CA, 

County of Santa Clara

16CV303387

Reviewed By:R. Walker

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 29 of 77
PLAINTIFF/PETITIONER: RODERICK MAGADIA, etc. CASENJ MBER 

DEFENDANT/RESPONDENT: WAL-MART ASSOCIATES, INC., etc.; et al. 

J6CV303387 

5. c. D by mall and acknowledgment of receipt of service. I malled the documents listed in item 2 to the party, to the 

address shown in item 4, by first-class mail, postage prepaid, 

(1) on (date): (2) from (city): 

(3) D with two copies of the Notice and Acknowledgment of Receipt and a postage-paid return envelope addressed 

to me. (Attach completed Notice and Acknowledgement of Receipt.) (Code Civ. Proc., § 415.30.) 

(4) D to an address outside California with return receipt requested. (Code Civ. Proc., § 415.40.) 

d D by other means (specify means of service and authorizing code section): 

0 Additional page describing service is attached. 

6. The "Notice to the Person Served" (on the summons) was completed as follows: 

a. D as an individual defendant. 

b. D as the person sued under the fictitious name of (specify): 

c. D as occupant. 

d. W On behalf of (specify): WAL-MART ASSOCIATES, INC., a Delaware corporation 

under the following Code of Civil Procedure section: 

0 416.10(corporation) 

D 416.20 (defunct corporation) 

D 416.30 Uoint stock company/association) 

D 41 6.40 (association or partnership) 

D 416.50 (public entity) 

7. Person w ho served papers 

a Name: Jose Henriquez, Ace Attorney Service, Inc. 

D 415.95 (business organization, form unknown) 

D 416.60 (minor) 

D 416.70 (ward or conservatee) 

D 416.90 (authorized person) 

D 415.46 (occupant) 

D other: 

b. Address: 81 I Wilshire Boulevard, Suite 900, Los Angeles, California 90017 

c. Telephone number: (2 13) 623-3979 

d. Tho fee for service was: S 

e. I am: 

(1)0 not a registered California process server. 

(2)0 

(3) w exempt from registration under Business and Professions Code section 22350(b). 

a registered California process server: 

(i) D owner W employee D independent contractor. 

(ii) Registration No.: 2016 160583 

(iii) County: LOS ANGELES 

8. [1J I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 

or 

9. D I am a California sheriff or marshal and I certify that the foregoing is true and correct. 

Date: December 8, 20 16 

1 

(l.V.ME OF PERSON 

JOSE 

V.'HO SERVED 

HENRJQUEZ PAPERS/SHERIFF OR MARSHAL) 

~~(SIGNATUREk ) 

POS-010 I Rev. January 1, 2007) 

PROOF OF SERVICE OF SUMMONS Pogo 2 or 2 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 30 of 77
Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 31 of 77
POS-010 

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, IJlld addtess}: FOR COURT USE ONLY 

DIVERSITY LAW GROUP, P.C. - Larry W. Lee, Esq. (SBN 228175); Nicholas Rosenthal, Esq. (SBN 268297) 

515 South Figueroa Street, Suite 1250 

Los Angeles, California 90071 

TELEPHONE NO.: (213) 488-6555 FAX NO. (0ption91}: (213) 488-6554 

E-MAIL ADDREss (OpfionalJ· lw lee@diversity law .com; nrosenthal@d iversity law .com 

ATTORNEY FOR <Name}: Plaintiff and the Class 

SUPERIOR COURT OF CALIFORNIAFCOUNTY OF SANTA CLARA 

STREET ADDRESS: 191 North irst street 

MAILING ADDRESS: 

CITY AND ZlP CODE: San Jose, California 95113 

BRANCH NAME DOWNTOWN SUPERIOR COURT 

PLAINTIFF/PETITIONER: RODERICK MAGADIA, etc. CASE NUMBER: 

DEFENDANT/RESPONDENT: WAL-MART ASSOCIATES, INC., etc.; et al. 16CV303387 

Ref. No. or Fila No.: 

PROOF OF SERVICE OF SUMMONS 1398871K 

(Separate proof of service is required for each party served.) 

1. At the time of service I was at least 18 years of age and not a party to this action. 

2. I served copies of: 

a. W summons 

b. W complaint 

c. D Alternative Dispute Resolution (ADR) package 

d. [ZJ Civil Case Cover Sheet (served in complex cases only) 

e. D cross-complaint 

f. D other (specify documents): 

3. a. Party served (specify name of party as shown on documents served): 

WAL-MART STORES, INC., a Delaware corporation 

b. [LI Person (other than the party in item 3a) served on behalf of an entity or as an authorized agent (and not a person 

under item 5b on whom substituted service was made) (specify name and relationship to the party named in item 3a): 

CT Corporation System, Agent, Received by Daisy Montenegro, Process Specialist 

4. Address where the party was served: 

818 West 7th Street, Suite 930, Los Angeles, California 90017 

5. I served the party (check proper box) 

a. 17] by personal service. I personally delivered the documents listed in item 2 to the party or person authorized to 

receive service of process for the party (1) on (date): 12/06/2016 (2) at (time): 9:05 a.m. 

b. D by substituted service. On (date): at (time): I left the documents listed in item 2 with or 

in the presence of (name and title or relationship to person indicated in item 3): 

(1) D (business) a person at least 18 years of age apparently in charge at the office or usual place of business 

of the person to be served. I informed him or her of the general nature of the papers. 

(2) D (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual 

place of abode of the party. I informed him or her of the general nature of the papers. 

(3) D (physical address unknown) a person at least 18 years of age apparently in charge at the usual mailing 

address of the person to be served, other than a United States Postal Service post office box. I informed 

him or her of the general nature of the papers. 

(4) D I thereafter mailed (by first-class, postage prepaid) copies of the documents to the person to be served 

at the place where the copies were left (Code Civ. Proc.,§ 41j.20~. I mailed the documents on 

(date): from (city): or a declaration of mailing is attached. 

(5) D I attach a declaration of dlllgence stating actions taken first to attempt personal service. 

Fonn Adcplod for Mandatory Uso 

Judicial Council of Callfomla 

POS-010 [Rav. Jwwary 1, 2007) 

PROOF OF SERVICE OF SUMMONS 

Paga 1 of2 

Codo of Civil Procedure,§ 417, 10 

Amoncan LogalNet, Inc. 

www.Forma~.com 

E-FILED

12/9/2016 4:10:02 PM

Clerk of Court

Superior Court of CA, 

County of Santa Clara

16CV303387

Reviewed By:R. Walker

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 32 of 77
PLAINTIFF/PETITIONER: RODERICK MAGADIA, etc. CASE NUMBER 

- 16CV303387 

DEFENDANT/RESPONDENT: WAL-MART ASSOCIATES, fNC., etc.; et al. 

5. c. D by mall and acknowledgment of receipt of service. I mailed the documents listed in item 2 to the party, to the 

address shown in item 4, by first-class mail, postage prepaid, 

(1) on (date): (2) from (city): 

(3) D with two copies of the Notice and Acknowledgment of Receipt and a postage-paid return envelope addressed 

to me. (Attach completed Notice and Acknowledgement of Receipt.) (Code Civ. Proc .. § 415.30.) 

(4) D to an address outside California with return receipt requested. (Code Civ. Proc .. § 415.40.) 

d. D by other means (specify means of seNice and authorizing code section): 

D Additional page describing service is attached. 

6. The "Notice to the Person Served" (on the summons) was completed as follows: 

a. D as an individual defendant. 

b. D as the person sued under the fictitious name of (specify): 

c. D as occupant. 

d. W On behalf of (specify): WAL-MART STORES, INC., a Delaware corporation 

under the following Code of Civil Procedure section: 

0 416.10 (corporation) 

D 416.20 (defunct corporation) 

D 416.30 Ooint stock company/association) 

D 416.40 (association or partnership) 

D 416.50 (public entity) 

7. Person who served papers 

a. Name: Jose Henriquez, Ace Attorney Service, Inc. 

D 415.95 (business organization. form unknown) 

D 416.60 (minor) 

D 416.70 (ward or conservatee) 

D 416.90 (authorized person) 

D 415.46 (occupant) 

D other: 

b. Address: 811 Wilshire Boulevard, Suite 900, Los Angeles, California 90017 

c. Telephone number: (213) 623-3979 

d. The fee for service was: S 

e. I am: 

c1) D 

c2J D 

(3) [{] 

not a registered California process server. 

exempt from registration under Business and Professions Code section 22350(b). 

a registered California process server: 

(i) D owner [{] employee D independent contractor. 

(ii) Registration No: 2016 160583 

(iii) County: LOS ANGELES 

8. W I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 

or 

9. D I am a California sheriff or marshal and I certify that the foregoing is true and correct. 

Date: December 8, 2016 

JOSE HENRIQUEZ 

(NAME OF PERSON WHO SERVED PAPERS/SHERIFF OR MARSHAL) 

POS-010 (Rev January 1, 2007) 

PROOF OF SERVICE OF SUMMONS Page 2 of 2 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 33 of 77
Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 34 of 77
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA 

191 N. FIRST STREET 

SAN JOSE, CA 95113-1090

TO: FILE COPY 

RE: Magadia v. Wal-Mart Associates, Inc., et al.

CASE NUMBER: 16CV303387

ORDER AND NOTICE OF REASSIGNMENT OF CASE

Please be advised that the above entitled complex case has been reassigned for all purposes, 

including discovery and trial, to Department 1 (Complex Civil Litigation), the HONORABLE BRIAN C. 

WALSH presiding, beginning January 3, 2017. 

Please note that all hearing dates remain as set (Department 1). 

An updated Joint Case Management Statement shall be filed by the parties at least fifteen (15) 

calendar days prior to the next scheduled Case Management Conference. 

Please contact the Complex Civil Litigation Department, (408) 882-2286, if you have any questions. 

Date Issued: December 20, 2016 Hon. Peter H. Kirwan 

 Judge of the Superior Court 

If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the 

American with Disabilities Act, please contact the Court Administrator’s office at (408) 882-2700, or use the Court’s TDD line, 

(408) 882-2690 or the Voice/TDD California Relay Service, (800) 735-2922. 

E-FILED

12/20/2016 4:08:39 PM

Clerk of Court

Superior Court of CA, 

County of Santa Clara

16CV303387

Reviewed By:R. Walker

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 35 of 77
Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 36 of 77
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DIVERSITY LAW GROUP, P.C. 

Larry W. Lee, State Bar No. 228175 

E-mail: lwlee@diversitylaw.com 

Nicholas Rosenthal, State Bar No. 268297 

E-mail: nrosenthal@diversitylaw.com 

515 S. Figueroa St., Suite 1250 

Los Angeles, California 90071 

Telephone: (213) 488-6555 

Facsimile: (213) 488-6554 

POLARIS LAW GROUP LLP 

William L. Marder, State Bar No. 170131 

E-mail: bill@polarislawgroup.com 

501 San Benito Street, Suite 200 

Hollister, California 95023 

Telephone: (831) 531-4214 

Facsimile: (831) 634-0333 

Dennis S. Hyun (State Bar No. 224240) 

E-mail: dhyun@hyunlegal.com 

HYUN LEGAL, APC 

515 S. Figueroa St., Suite 1250 

Los Angeles, California 90071 

(213) 488-6555 

(213) 488-6554 facsimile 

Attorneys for Plaintiff and the Class 

SUPERIOR COURT OF THE ST ATE OF CALIFORNIA 

FORTHECOUNTYOFSANTACLARA 

RODERICK MAGADIA, individually and on 

behalf of all those similarly situated, 

Plaintiff, 

vs. 

WAL-MART ASSOCIATES, INC., a Delaware 

corporation; WAL-MART STORES, INC., a 

Delaware corporation; and DOES 1 through 50, 

inclusive, 

Defendants. 

-1-

Case No. 16CV303387 

(Assigned to the Honorable Peter H. Kirwan, 

Dept. 1) 

NOTICE OF ORDER DEEMING CASE 

COMPLEX AND ST A YING 

DISCOVERY AND REASSIGNMENT 

OF CASE 

Date: 

Time: 

Dept.: 

March 24, 2017 

10:00 A.M. 

1 

NOTICE OF ORDER DEEMING CASE COMPLEX AND STA YING DISCOVERY AND REASSIGNMENT OF 

CASE 

E-FILED

Clerk of Court

Superior Court of CA, 

County of Santa Clara

16CV303387

Reviewed By:A. Ramirez

12/22/2016

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 37 of 77
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 

2 PLEASE TAKE NOTICE THAT the Court has deemed the above-referenced case complex 

3 within the meaning of California Rules of Court 3.400. Any paiiy objecting to the complex designation 

4 must file an objection and proof of service within ten ( 10) days of service of the Court's Order Deeming 

5 Case Complex and Staying Discovery, a true and correct copy of which is attached herewith as Exhibit 

6 A. Further, all parties are ordered to pay the complex case fee within ten (10) calendar days of the date 

7 of the Order Deeming Case Complex and Staying Discovery. 

8 The Case Management Conference is set for March 24, 2017, at 10:00 A.M. in Department 1. 

9 All counsel are ordered to appear in person. Counsel are ordered to meet and confer in person at least 

10 fifteen (15) days prior to the Case Management Conference and discuss the issues set forth in the Order 

11 Deeming Case Complex. 

12 A Joint Case Management Conference Statement must be filed fifteen (15) calendar days prior to 

13 the First Case Management Conference and must include criteria identified in the attached Order 

14 Deeming Case Complex. 

15 Pending further order of the Court, discovery is stayed. Defendants must file a Notice of 

16 Appearance. Any responsive pleadings shall not be filed or served until a date is set at the First Case 

1 7 Management Conference. 

18 PLEASE TAKE FURTHER NOTICE that attached herewith as Exhibit B, C and Dare the 

19 Court's Civil Lawsuit Notice, Santa Clara County Superior Court's Alternative Dispute Resolution 

20 Information Sheet and Guidelines and Protocols Complex Civil Litigation Department respectively. 

21 PLEASE TAKE FURTHER NOTICE that this case has been reassigned to the Honorable Brian 

22 C. Walsh in Department 1, beginning January 3, 2017. All hearing dates remain set. A true and correct 

23 copy of this Order is attached herewith as Exhibit E. 

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DATED: December 21, 2016 DIVERSITY LAW GROUP, P.C. 

/ By:~~~~~~~~~~~~~~~ 

Larry W. Lee 

Attorneys for Plaintiff and the Class 

-2-

NOTICE OF ORDER DEEMING CASE COMPLEX AND STA YING DISCOVERY AND REASSIGNMENT OF 

CASE 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 38 of 77
EXHIBIT A 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 39 of 77
TO: FILE COPY 

RE: 

CASE NUMBER: 

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA 

191 N. FIRST STREET 

SAN JOSE, CA 95113-1090 

Magadia v. Wal-Mart Associates, Inc., et al. 

16CV303387 

E-FILED 

12/6/2016 3:36:44 PM 

Clerk of Court 

Superior Court of CA, 

County of Santa Clara 

16CV303387 

Reviewed By:R. Walker 

ORDER DEEMING CASE COMPLEX AND STAYING DISCOVERY 

WHEREAS, the Complaint was filed by Plaintiff RODERICK MAGADIA("Plaintiff") in the Superior 

Court of California, County of Santa Clara, on December 2, 2016 and assigned to Department 1 

(Complex Civil Litigation), the Honorable Peter H. Kirwan presiding, pending a ruling on the 

complexity issue; 

IT IS HEREBY ORDERED that: 

The Court determines that the above-referenced case is COMPLEX within the meaning of 

California Rules of Court 3.400. The matter remains assigned, for all purposes, including discovery 

and trial, to Department 1 (Complex Civil Litigation), the Honorable Peter H. Kirwan presiding. 

The parties are directed to the Electronic Filing and Service Standing Order and to the 

Guidelines for the Complex Civil Litigation Department, copies of which may be downloaded from 

http://www.scscourt.org/forms_and_filing/efiling.shtml. 

Electronic service under this Order shall be construed by the Court and all parties to be 

equivalent to personal service. The two court days extension of time for electronic service under 

CCP § 1010.6(a)(4) does not apply. Any document for which service has not been completed by 

5:00 p.m. is deemed served the following business day. 

All parties are hereinafter ordered to submit to the Court's E-Filing website digital copies of all 

documents that were previously manually filed prior to the entry of this Order. 

Pursuant to California Rules of Court, Rule 3.254, the creation and maintenance of the Master 

Service List shall be under the auspices of ( 1) Plaintiff RODERICK MAGADIA, as the first-named party 

in the Complaint, and (2) the first-named party in each Cross-Complaint, if any. 

Pursuant to Government Code section 70616(c), each party's complex case fee is due within 

ten (10) calendar days of this date. 

Plaintiff shall serve a copy of this Order on all parties forthwith and file a proof of service within 

seven (7) days of service. 

Any party objecting to the complex designation must file an objection and proof of service 

within ten (10) days of service of this Order. Any response to the objection must be filed within 

seven (7) days of service of the objection. The Court will make its ruling on the submitted pleadings. 

The Case Management Conference remains set for March 24. 2017 at 10:00 a.m. in 

Department 1 and all counsel are ordered to attend in person. 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 40 of 77
Counsel for all parties are ordered to meet and confer in person at least 15 days prior to the 

First Case Management Conference and discuss the following issues: 

l. Issues related to recusal or disqualification; 

2. Issues of law that, if considered by the Court, may simplify or further resolution of the case, 

including issues regarding choice of law; 

3. Appropriate alternative dispute resolution (ADR), for example, mediation, mandatory 

settlement conference, arbitration, mini-trial; 

4. A plan for preservation of evidence and a uniform system for identification of documents 

throughout the course of this litigation; 

5. A plan for document disclosure/production and additional discovery; which will generally 

be conducted under court supervision and by court order; 

6. Whether it is advisable to address discovery in phases so that information needed to 

conduct meaningful ADR is obtained early in the case (counsel should consider whether 

they will stipulated to limited merits discovery in advance of certification proceedings), 

allowing the option to complete discovery if ADR efforts are unsuccessful; 

7. Any issues involving the protection of evidence and confidentiality; 

8. The handling of any potential publicity issues; 

Counsel for Plaintiff is to take the lead in preparing a Joint Case Management Conference 

Statement to be filed fifteen calendars days prior to the First Case Management Conference, and 

include the following: 

l. A Statement as to whether additional parties are likely to be added and a proposed 

date by which all parties must be served; 

2. Service lists identifying all primary and secondary counsel, firm names, addresses, 

telephone numbers, email addresses and fax numbers for all counsel; 

3. A description of all discovery completed to date and any outstanding discovery as of the 

date of the conference; 

4. Applicability and enforceability of arbitration clauses, if any; 

5. A list of all related litigation pending in other courts, including Federal Court, and a brief 

description of any such litigation, and a statement as to whether any additional related 

litigation is anticipated (CRC 3.300); 

6. A description of factual and legal issues - the parties should address any specific contract 

provisions the interpretation of which may assist in resolution of significant issues in the 

case; 

7. The parties' tentative views on an ADR mechanism and how such mechanism might be 

integrated into the course of the litigation; 

8. Whether discovery should be conducted in phases or limited; and if so, the order of 

phasing or types of limitations of discovery. If this is a class action lawsuit, the parties 

should address the issue of limited merits discovery in advance of class certification 

motions. 

To the extent the parties are unable to agree on the matters to be addressed in the Joint 

Case Management Conference Statement, the positions of each party or of various parties should 

be set forth separately and attached to this report as addenda. The parties are encouraged to 

propose, either jointly or separately, any approaches to case management they believe will 

promote the fair and efficient handling of this case. The Court is particularly interested in identifying 

potentially dispositive or significant threshold issues the early resolution of which may assist in moving 

the case toward effective ADR and/or a final disposition. 

If this is a class action lawsuit, a copy of the Court's Guidelines for Motions relating to Class 

Certification is attached to this Order. The Court may set a briefing schedule for Plaintiff's class 

certification motion at the time of the conference. 

2 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 41 of 77
Pending further order of this Court, the service of discovery and the obligation to respond to 

any outstanding discovery is stayed. However, Defendant(s) shall file a Notice of Appearance for 

purposes of identification of counsel and preparation of a service list. The filing of such a Notice of 

Appearance shall be without prejudice to the later filing of a motion to quash to contest jurisdiction. 

Parties shall not file or serve responsive pleadings, including answers to the complaint, motions to 

strike, demurrers, motions for change of venue and cross-complaints until a date is set at the First 

Case Management Conference for such filings and hearings. 

This Order is issued to assist the Court and the parties in the management of this "Complex" 

case through the development of an orderly schedule for briefing and hearings. This Order shall not 

preclude the parties from continuing to informally exchange documents that may assist in their 

initial evaluation of the issues presented in this Case. 

Plaintiff shall serve a copy of this Order on all the parties in this matter forthwith. 

SO ORDERED. 

Date: December 6, 2016 Hon. Peter H. Kirwan 

Judge of the Superior Court 

If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the 

American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line, 

(408) 882-2690 or the Voice/TDD California Relay Service, (800) 735-2922. 

3 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 42 of 77
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GUIDELINES FOR MOTIONS RELATING TO CLASS CERTIFICATION 

DEPARTMENT 1- COMPLEX CIVIL LITIGATION 

The party moving for or against class certification must present in the moving papers admissible 

evidence, as required by applicable law, establishing that the elements for certification are, or 

are not, present. 

All facts other than purely rebuttal matters upon which the moving party will rely in the hearing 

must be set out in evidence submitted with the notice of motion and moving papers. 

Each party should address all elements relevant to deciding the appropriateness of class 

certification. The list of elements set forth below is offered by the Court as a general summary 

and is not intended to supplant substantive law. 

l. Commonality and Predominance 

a. The class definition, including a statement of criteria that putative class members 

must possess to be eligible for class membership 

b. A description/definition of proposed subclasses, if any 

c. Those issues of law which are common to all class members 

d. Those issues of law which are unique to one or more class members but which 

must be presented at trial. In describing these unique issues of law, the segments 

of the class to which they are applicable should be described with a statement of 

the number within the class to whom each unique issue applies 

e. Whether, and if so how, common issues of law predominate 

f. Those issues of fact which are common to all class members 

g. Those issues of fact which are unique to one or more class members but which 

must be presented at trial. In describing these unique issues of fact, the segments 

of the class to which they are applicable should be described with a statement of 

the number within the class to whom each unique issue applies 

h. Whether, and if so how, common issues of fact predominate 

i. Conflicts, if any, between class members 

2. Ascertainability 

a. The manner in which and the time when the individual class members will be 

identified if such identification is contemplated 

3. Numerosity 

a. The approximate number of persons in the class, and if there are subclasses, the 

approximate number of persons in each subclass 

b. The basis for the above approximations 

c. The general geographic location[s] of the class members. If the class is not 

confined to the state of California, the description should include those locations 

outside California where class members are located 

d. Whether, and if so why, joinder is impracticable 

4. Typicality 

a. Why the claims and status of each of the proposed class representative[s] are 

typical of those of the proposed class or of the proposed subclass 

Guidelines/or Motions relating to Class Certification 

Department 1 - Complex Civil Litigation 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 43 of 77
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b. Factual and/or legal differences, if any, in the representative's status as a class 

member and those of any other persons within the class. If there are subclasses, 

a factual statement of the subclass of which the representative is a member 

c. Unique legal and/or factual issues, if any, pertaining to the representative[s] 

which must be litigated 

d. Conflicts, if any, between the class representative[ s] and the class members 

5. Adequacy 

a. The adequacy of class counsel, including the ability of class counsel to represent 

class members with conflicting claims or interest 

b. The adequacy of the class representative[ s), including the ability of the class 

representative[s] to serve as fiduciaries for class members with conflicting or 

inconsistent claims or interests 

c. The issues of law and/or fact which must be litigated between class members 

6. Substantial Benefits/Superiority 

a. Procedures alternative to a class action which might be used to adjudicate the 

issues involved in the action 

b. Why a class action is, or is not, procedurally superior to each alternative 

procedure, unless superiority is not an element of certifying that cause of action, 

including a discussion of the ability of the Court to manage the alternative 

proceedings in relation to its ability to manage the conduct of the class action 

c. Whether there are substantial benefits to the Court, the parties, and/or the public 

to proceeding as a class action 

7. Notice 

a. Counsel requesting class certification should provide specifics regarding 

necessary notice to class members and the methods proposed for giving notice. 

Guidelines for Motions relating to Class Certification 

Department 1 - Complex Civil Litigation 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 44 of 77
EXHIBITB 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 45 of 77
CIVIL LAWSUIT NOTICE 

ATTACHMENT CV-5012 

CASE NUMBEI~. 16CV303387 

Superior Court of California, County of Santa Clara 

191 N. First St, San Jose, CA 95113 

READ THIS ENTIRE FORM 

PLAINTIFFS (the person(s) suing): Within 60 days after filing the lawsuit, you must serve each defendant with the Complaint, 

Summons, an Alternative Dispute Resolution (AIJR) Information Sheet, and a copy of this Civil Lawsuit Notice, and you must file written 

proof of such service. 

DEFENDANTS(The person(s) being sued): You must do each of the following to protect your rights: 

1. You must file a written response to the Complaint, in the Clerk's Office of the Court, within 30 days of 

the date the Summons and Complaint were served on you; 

2. You must send a copy of your written response to !he plaintiff; and 

3. You must attend the first Case Management Conference. 

Warning: If you do not do tlmse three things, you may automatically lose this case. 

RULES AND FORMS: You must follow the California Rules of Court (CRC) and the Santa Clara County Superior Court Local Civil 

Rules and use proper forms. You can get legal information, view !he rules and get forms, free of charge, from the Self-Service Center 

al 99 Noire Dame Avenue, San Jose (408-882-2900 x-2926), or from: 

• State Rules and Judicial Council Forms: www.courtinfo.ca.aov/forms and www.courtinfo.ca.oov/rules 

• Local Rules and Forms: http://v.J1.w.i.sccsuoeriorcourt.ora/civiltrule1toc.hlm 

Rose Printing: 408-293-8177 or becky@rose-printing.com (there is a charge for forms) 

For other local legal information, visit the Court's Self-Service website www.scselfservice.org and select "Civil." 

CASE MANAGEMENT CONFERENCE (CMCJ: You must meet with the other parties and discuss the case, in person or by telephone, 

at least 30 calendar days before the CMC. You must also fill out, file and serve a Caso Management Statement (Judicial Council form 

CM-110) at least 15 calendar days before the CMC. 

You or your attorney must appear at the CMG. You may ask to appear by lelepl10ne - see Local Civil Rule 8. 

Your Case Management Judge is: _!i'!f]_._~<:_te'-_!i:_~!!WC!.t! _________________ Department:.. 1 

The 1SJ CMC is scheduled for: (Completed by Clerk of Court) 

Date: _<}_Jf.2412017 ___ Time: _10:0Q am ___ in Department 1 

The next CMG is scheduled for: (Completed by party if the 1'1 CMG was continued or has passed) 

Date:-----·----· .. Time:---·------·· in Department __ _ 

ALTERNATIVE DISPUTE RESOLUTION (ADR): If all parties have appeared and filed a completed ADR Stipulation Form (local form 

CV-5008) at least 15 days before the CMC, the Court will cancel the CMC and mail notice of an ADR Status Conference. Visit the 

Court's website at www.sccsuoeriorcourt.org/civil/ADRI or call !he ADR Administrator (408-882-2100 x-2530) for a list of ADR providers 

and their qualifications, services, and fees. 

WARNING: Sanctions may be imposed if you do not follow the California Rules of Court or the Local Rules of Court. 

Form CV-5012 

Rev. 07l01107 

CIVIL LAWSUIT NOTICE Page 1or1 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 46 of 77
EXHIBIT C 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 47 of 77
SANTA CLARA COUNTY SUPERIOR COURT 

ALTERNATIVE DISPUTE RESOLUTION 

INFORMATION SHEET 

Many cases can be resolvecl to the satisfaction of all parties without the necessity of traditional litigation, which can be expensive, time 

consuming, and stressful. The Court finds that ii is in the best interests of the parties that they participate in alternatives to traditional 

litigation, including arbitration, mediation, neutral evaluation. special masters and referees, and settlement conferences. Therefore, all 

matters shall be referred to an appropriate form of Alternative Dispute Resolution (ADR) before they are set for trial. unless there is good 

cause to dispense with the ADR requirement. 

What is ADR? 

ADR is the general term for a wide variety of dispute resolution processes that are cillernatives to litigation. Types of ADR processes 

include mediation, arbitration. neutral evaluation. special masters and referees. and settlement conferences, among others forms. 

What are the advantages of choosi11g ADR instead of Jitigatio11? 

ADR can have a number of advantages over litigation: 

ADR can save time. A dispute can be resolved in a matter of months. or even weeks. while litigation can take years. 

• ADR can save money. Attorney's fees, court costs, and expert fees can be reduced or avoided altogether. 

• ADR provides more participation. Parties have more opportunities with ADR to express their interests and concerns. instead 

of focusing exclusively on legal rights. 

ADR provides more control and flexibility. Parties can choose the ADR process that is most likely to bring a satisfactory 

resolution to their dispute. 

ADR can reduce stress. ADH encourages cooperation and communication. while discouraging the adversarial atmosphere of 

litigation. Surveys of parties who have participated in an ADR process have found much greater satisfaction than v.~th parties 

who have gone through litigation. 

What are the mai11 forms of ADR offered by the Court? 

Mediation is an informal. confidential. flexible and non-binding process in the mediator helps the parties to understand the interests of 

everyone involved, and their practical and legal choices. The mediator helps the parties to communicate better, explore legal and practical 

settlement options, and reach an acceptable solution of the problem. The mediator does not decide the solution to the dispute; the parties 

do. 

Mediation may be appropriate when: 

• The parties want a non-adversary procedure 

• The parties have a continuing business or personal relationship 

Communication problems are interfering with a resolution 

There is an emotional element irwolvecl 

The parties are interested in an injunction, consent decree. or other form of equitable relief 

Neutral evaluation, sometimes called "Early Neutral Evaluation" or "ENE", is an informal process in which the evaluator, an experienced 

neutral lawyer. hears a compact presentation of both sides of the case, gives a non-binding assessment of the strengths and weaknesses 

on each side, and predicts the likely outcome. The evaluator can help parties to identify issues, prepare stipulations, and draft discovery 

plans. The parties may use the neutral's evaluation to discuss settlement. 

Neutral evaluation may be appropriate when: 

• The parties are far apart in their view of the law or value of the case 

The case involves a technical issue in which the evaluator has expertise 

Case planning assistance would be helpful and would save legal fees and costs 

The parties are interested in an injunction, consent decree. or other form of equitable relief 

CV-5003 REV 6126113 

-ovorALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET 

CIVIL DIVISION 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 48 of 77
Arbitration is a less formal process than a trial. with no jury. The arbitrator hems the evidence ancl arguments of the parties and then 

makes a written clecision. The parties can agree to binding or non-binding arbitration. In t)inding arbitration, the arbitrator's decision is final 

and completely resolves the case, without the opportunity for appeal. In non-binding orbitration, the arbitrator's clecision could resolve the 

case, without the opportunity for appeal, unless a party timely rejects the arbitrator's decision within 30 days and requests a trial. Private 

arbitrators are allowed to charge for their time. 

Arbitration may be appropriate when: 

• The action is for personal injury, property damage, or breach of contract 

Only monetary damages are sought 

• Witness testimony, under oath, needs to be evaluated 

An advisory opinion is sought from an experienced litigator (if a non-binding arbitration) 

Civil Judge ADR allows parties to have a mediation or settlement conference with an experienced judge of the Superior Court. Mediation 

is an informal, confidential, flexible and non-binding process in which the judge helps the parties to understand the interests of everyone 

involved, and their practical and legal choices. A settlement conference is an informal process in which the judge meets with the parties or 

their attorneys, hears the facts of the dispute, helps identify issues to be resolved, and normally suggests a resolution that the parties may 

accept or use as a basis for further negotiations. The request for mediation or settlement conference may be made promptly by stipulation 

(agreement) upon the filing of the Civil complaint and the answer. There is no chmge for this service. 

Civil Judge ADR may be appropriate when: 

The parties have complex facts to review 

The case involves multiple parties and problems 

• The courthouse surroundings would he helpful to the settlement process 

Special masters and referees are neutral parties who may be appointed by the court to obtain information or to make specific !act 

findings that may lead to a resolution of a dispute. 

Special masters and referees can be particularly effective in complex cases with a number of parties, like construction disputes. 

Settlement conferences are informal processes in which the neutral (a judge or an experienced attorney) meets with the parties or their 

attorneys, hears the facts of the dispute, helps identify issues to be resolved, and normally suggests a resolution that the parties may 

accept or use as a basis for further negotiations. 

Settlement conferences can be effective when the authority or expertise of the judge or experienced attorney may help the parties reach a 

resolution. 

What kind of disputes can be resolved by ADR? 

Although some disputes must go to court, almost any dispute can be resolved through ;\DR. This includes disputes involving business 

matters; civil rights; collections; corporations; construction; consumer protection; contracts; copyrights; defamation; disabilities; 

discrimination; employment: environmental problems: fraud: harassrnent; health care; housing; insurance: intellectual property: labor: 

landlord/tenant; media; medical malpractice and other professional negligence: neighborhood problems: partnerships: patents; personal 

injury; probate; product liability; property damage: real estate; securities: sports: trade secret; and wrongful death, among other matters. 

W/1ere can you get assistance with selecting an appropriate form of ADR and a neutral for your case, information about ADR 

procedures, or answers to other questions about ADR? 

Contact: 

Santa Clara County Superior Court 

ADR Administrator 

Santa Clara County DRPA Coordinator 

408-792-2784 

408-882-2530 

CV-5003 RE\16126'13 ALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET 

CIVIL DIVISION 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 49 of 77
EXHIBITD 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 50 of 77
Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

GUIDELINES AND PROTOCOLS 

COMPLEX CIVIL LITIGATION DEPARTMENT 

Welcome to the Complex Civil Litigation Department of the Superior Court of California, County of 

Santa Clara. This is one of seven courts selected by the California Judicial Council where case 

management principles designed to reduce the time and expense normally associated with complex civil 

litigation cases are being employed. 

Counsel's familiarity with the applicable California Rules of Court, Local Rules - Szq1erior rourt of 

California, County of Santa Clara and the Deskbook on the Management of Complex Civil Litigation is 

expected. A copy of the Deskbook may be obtained by contacting LEXIS PUBLISHING at l-800-833-

9844. 

In addition, familiarity with the following guidelines and protocols will answer common procedural 

questions and should assist you in your appearances in this Department. Note: These Guidelines and 

Protocols are revised from previous versions. Your thoughts and suggestions are always welcome. 

Significant practice highlights include: 

This Department's website is now integrated into the Court's site, www.scscourt.org. 

Tentative rulings on motions of all types are posted online by 2:00 p.m. the day prior to the 

hearing and unless an objection is properly raised by 4:00 p.m. the day prior to the hearing, the ruling 

will automatically become the Court's order the next day. For specific information, go to: 

http://www.scscourt.org/online services/tentatives/tentative rulings Deptl.shtml 

Ex parte hearings are limited to two mornings per week and require advance reservation with 

the Coordinator. Letter briefs are not acceptable. 

Subsequent conference statements are to be in a combined format; see VII. 5. 

No discovery motions until the parties have meaningful(v met and conferred AND met with the 

Court for a face-to-face conference. 

The Court requires detailed JOINT pre-trial statements in advance of a pre-trial conference 

where counsel are expected to make concrete suggestions as to efficient trial management. 

Page 1 of 21 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 51 of 77
Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

PLAINTIFF MUST SERVE A COPY OF THESE GUIDELINES 

WITH THE SUMMONS AND COMPLAINT. 

TABLE OF CONTENTS 

I. CONTACT INFORMATION ......................................................................................... 3 

II. INTRODUCTION ........................................................................................................... 3 

Ill. COURTROOM DEMEANOR, CONDUCT AND ETIQUETTE ................................. .4 

IV. GENERAL MATTERS ................................................................................................... 4 

V. EX PARTE APPLICATIONS ........................................................................................ 4 

VI. LAW AND MOTION ..................................................................................................... 4 

VII. CASE MANAGEMENT CONFERENCES (CMC) AND OTHER CONF ................... 4 

VIII. CASE MANAGEMENT AND REFERENCE ORDERS ............................................. .4 

IX. MANDATORY SETTLEMENT CONFERENCES (MSC) ......................................... .4 

X. MINI-TRIALS ................................................................................................................ 4 

XI. PRE-TRIAL MEET AND CONFER .............................................................................. 4 

XII. TRIALS - GENERALLY ................................................................................................ 4 

XIII. TRIAL EXHIBITS .......................................................................................................... 4 

CV of Judge Kirwan 20 

Page 2 of 21 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 52 of 77
Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

I. CONTACT INFORMATION 

Revised October 5, 2016 

Complex Civil Guidelines 

Department l C - Downtown Superior Courthouse, 191 N l st Street, Second Floor, 

San Jose, CA 95113. 

www.scscourt.org 

Judge 

Courtroom Clerk 

Reporter 

Bailiff and Deputy Sheriff 

Coordinator for Complex 

E-Filing Fax: 

E-Filing Web Site: 

II. INTRODUCTION 

Hon. Peter H. Kirwan 

Ingrid Stewart 

Melissa Crawford 

Miguel Ramos 

Rowena Walker 

408-882-2293 

http://www.scefiling.org 

408-882-2110 

408-882-2113 

408-882-2115 

408-882-2111 

408-882-2286 

Complex cases suitable for assignment to the Complex Civil Litigation Department are defined in 

Rule 3.400, California Rules of Court ("Rules" or CRC). Cases will be assigned to the Complex 

Civil Litigation Department by the Court's own motion, or on application of any of the parties, 

pursuant to the procedures specified in Rules 3.401-3.403 and Santa Clara County Local Civil 

Rule of Court I (B). Applications for complexity determination shall be heard in the Complex 

Civil Litigation Department. It is within the Court's discretion to accept or reject a case for 

complex designation. 

In general, cases assigned to the Complex Civil Litigation Department will be managed in 

accordance with the principles set forth in the Deskbook on the Management of Complex Civil 

Litigation ("Deskbook"). 

Page 3 of 21 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 53 of 77
Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Complex Civil Guidelines 

III. COURTROOM DEMEANOR, CONDUCT AND ETIQUETTE 

Revised October 5, 2016 

I. The Court expects formality, civility and proper decorum at all times. Witnesses and parties 

are to be addressed and referred to by their surnames. COURTESY AND RESPECT TOW ARDS 

EVERYONE IN THE COURTROOM IS REQUIRED. Advise all witnesses and parties to 

observe appropriate courtroom demeanor and punctuality. The civil and courteous treatment of 

courtroom staff and opposing counsel is a paramount professional obligation of counsel. 

2. All pagers, cell phones and other audible electronic devices must be TURNED OFF while in 

the courtroom whether or not court is in session. 

3. Do not approach the clerk or reporter while court is session for any reason, or address the 

reporter with any request without permission of the Court. 

4. Objections, statements and arguments must be addressed to the Court rather than opposing 

counsel. Counsel may speak from the lectern (if present) or the counsel table. Counsel must stand 

when objecting or addressing the Court. Counsel may approach any witnesses as necessary only 

with leave of Court. 

5. At the end of each day, counsel must clear work areas including the area in the rear of the 

courtroom. 

6. Use of the department's fax machine or telephone requires the Court's permission. 

7. It is counsel's responsibility to note the date and time set for any future hearing. Hearing dates 

are set by contacting the Coordinator. 

8. Copy work is done by staff in the Records Unit. Courtroom staff will not make copies at 

counsel's request unless directed to do so by the Court. Copy work completed by courtroom staff 

is subject to the current per-page copy fee. 

9. If a peremptory challenge or challenge for cause is upheld, the case will be referred to the Civil 

Supervising Judge for reassignment. 

Page 4 of 21 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 54 of 77
Superior Court of California. 

County of Santa Clara 

191 North First Street 

San Jose. CA 95113 

IV. GENERAL MATTERS 

Revised October 5, 2016 

Complex Civil Guidelines 

I. The Court expects all counsel to maintain regular communication with each other regarding 

hearing dates, progress of the case, and settlement possibilities. A condition of remaining in the 

complex department is that counsel will behave toward all counsel and other participants with 

civility, courtesy and professionalism, both in and out of Court. Meeting and conferring with 

opposing counsel on both procedural issues as well as substantive issues is mandated. 

2. The Court believes in open discovery in accordance with the law, but expects counsel to 

refrain from engaging in excessive and abusive discovery. See discussion of discovery below 

3. The Court will require written notice of all hearing dates and decisions. Notice will not 

normally be "waived." 

4. Continuances of hearing or trial dates are discouraged but may be necessary from time to time. 

Continuances of trial dates by stipulation are not permitted without prior approval of the Court, 

and only to a date pre-approved by the Court. Please call the Coordinator for available dates 

before contacting other counsel. If preliminary approval is given, a written stipulation must be 

provided before the hearing or trial date. Faxed signatures on stipulations are permitted. 

5. ln the event a case settles prior to a court hearing or trial date, parties must file with the 

Complex Litigation Department either a Notice of Settlement, Request for Dismissal, a Stipulation 

for Entry of Judgment or a Judgment on Stipulation that is ready for the Court's signature, and 

must telephonically notify the Court as soon as the disposition is agreed upon. If the applicable 

document is not ready, counsel must appear at the time scheduled for hearing and recite the 

settlement for the record. 

6. Cross-complainants must serve a copy of these guidelines upon any new parties and give 

notice of any scheduled hearings and depositions at the time the cross-complaint is served. 

7. All actions classified as complex or provisionally complex are subject to the Court's Electronic 

Filing and Service Standing Order, unless exempted by order of the Court for good cause. Further 

information is posted on the Court's website at www.sce[iling.org. 

V. EX PARTE APPLICATIONS 

1. Ex parte appearances are discouraged except in unusual situations. The Court will only hear ex 

parte matters on Tuesday and Wednesday mornings beginning at 9:00 A.M. provided a time slot is 

reserved through the Coordinator. Strict compliance with Rule 3.1200-3.1207 ofthe California 

Page 5 of 21 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 55 of 77
Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

Rules of Court is required. In addition, the ex parte application and all supporting papers, 

including any proposed pleading, motion or order shall be electronically submitted to the Court's 

website by noon the Court day prior to the scheduled ex parte hearing date. 

2. The Court is eager to assist counsel when specific problems arise that may not require a formal 

motion. To arrange a conference with the Court when all counsel agree to the advisability of such 

a discussion, please contact the Coordinator to reserve a time for the conference. In these 

instances "letter briefs" are not acceptable, but briefs on court pleading paper not exceeding 3 

pages may be submitted. The Court prefers that discovery conference briefs be lodged via the 

Court's efiling website at www.scefilinq.org at least two court days in advance of the scheduled 

conference. 

3. Counsel may appear by telephone, with the Court's prior permission, at counsel's expense. 

VI. LAW AND MOTION 

Briefs and Oral Argument - General Admonitions 

Memoranda of points and authorities should be tightly organized and written. The Court is not 

interested in history except as it pertains to the motion at hand. Adverbs and adjectives are usually not 

helpful. Invective is useless. When you think you have edited the brief sufficiently, go over it and edit it 

again. Use spell check. A void string cites and footnotes. Out-of-state authority should be used only when 

necessary. Never omit a point thinking you'll "save it for argument." Organization and candor are 

essentials. A mere recitation of general black-letter law is of no value. 

A retired judge of this Court used to ask counsel at the start of the law and motion calendar, "Are 

you proud of your briefs?" Since the papers are reviewed by the Court it is not useful to repeat your 

written arguments. If there are new points you wish to argue, be prepared to explain why they were not 

included in your papers. This is not only for the sake of efficiency but to comply with due process and 

provide the other side a fair opportunity to respond. On occasion the Court will invite oral argument; 

typically this is for the Court to ask questions of counsel. Bring extra copies of essential papers to the 

hearing. 

Page 6 of 21 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 56 of 77
Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Complex Civil Guidelines 

l. Law and Motion matters are generally heard Fridays at 9:00 a.m. 

Revised October 5, 2016 

2. Counsel must first clear the hearing date with the other parties prior to contacting the 

Coordinator. You must provide the Court with the name of the case, the case number, type of 

hearing, hearing date requested and name and telephone number of the filing attorney. 

3. Prior to the hearing of any motion, petition or application all counsel and parties representing 

themselves shall communicate in a good faith effort to eliminate the necessity of the hearing. 

4. Discovery hearings are heard in this department. Discovery meet and confer obligations 

require an in-person conference between counsel. If a resolution is not reached, parties are 

required to meet and confer in person with the Court for all discovery-related hearings prior to 

filing of any discovery motion, unless otherwise authorized by the Court. Each side must 

serve and lodge a short brief, limited to no more than 3 pages, briefly discussing the issues to be 

discussed two court days in advance of the meeting. To schedule an informal discovery 

conference (JDC) with the Court, please contact the Coordinator. 

5. Any dates given by the Court relating to this process have no impact on statutory deadlines for 

filing motions or any other papers, including, but not limited to, the 45-day deadline for filing a 

motion to compel further responses. 

6. Counsel for moving parties must notify the Court as soon as possible regarding any matter to 

be taken off calendar or continued. Notice of continuances of hearings must be provided by the 

moving party. 

7. Chamber copies of all papers filed should be provided to the Coordinator by the filing party. 

8. The prevailing party must prepare an Order after Hearing in accordance with the requirements 

of Rule 3.1312. 

VIL CASE MANAGEMENT AND OTHER CONFERENCES 

I. The first case management conference is generally scheduled ninety (90) days after the action 

is filed. Plaintiff is required to give notice of this conference date to all other parties. 

2. Case Management Conferences are generally heard Fridays at 10:00 a.m. and are scheduled as 

necessary to monitor the progress of the case and to assist counsel and the parties as the matter 

progresses. The parties should expect the Court to schedule review hearings approximately every 

sixty to ninety days. 

Page 7 of 21 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 57 of 77
Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

3. There will be a detailed pre-trial conference 30-60 days before trial to deal with procedural 

issues and preliminary matters in order to make the trial process as predictable and smooth as 

possible. 

4. The conference may be a time for the Court to discuss trial evidence presentation and use of 

audio-visual equipment. The conference is not for the purpose of hearing motions in limine. An 

example of an issue for the conference: Product liability case in which the manner of presenting 

the underlying case is of concern. Will the Court allow counsel to read the transcript into the 

record? Live testimony? A combination of transcript and live testimony? Is a trial by jury 

requested? 

5. Judicial Council Form CM-110, Civil Case Management Statement (required by CRC 

3.725(c), is not well-suited for complex cases. Rather, the parties shall file a joint case 

management statement no later than fifteen calendar days prior to the hearing for each 

conference as described below: 

(a) brief objective summary of the case,(b) significant procedural and practical problems 

which may likely be encountered, (c) suggestions for efficient management, including a 

proposed timeline of key events, and (d) any other special consideration to assist the Court in 

determining an effective case management plan. 

A status conference statement may be filed as an alternative to the case management 

statement when appropriate. A status conference statement is generally less detailed than a 

case management statement and is to be used to advise the Court of progress or 

developments in the case which have occurred since the last review hearing. 

Page 8 of 21 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 58 of 77
Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Complex Civil Guidelines 

VIII. CASE MANAGEMENT AND REFERENCE ORDERS 

Revised October 5, 2016 

I. Case Management Orders are not required in all cases, but may be helpful in cases where the 

sequencing and timing of key events are necessary in the management of the litigation and 

preparation of the case for trial. However, even if a case management order is not necessary in a 

particular case, all complex cases must be managed by counsel, or the court, or both. 

2. Mediation and Reference matters should not commence until all parties are before the Court 

but not later than six months after the original complaint was filed, except for good cause. 

3. Mediation and Reference matters should be concluded 12 months after their initiation 

(approximately 18 months after the original complaint was filed), except for good cause. 

4. Brevity in drafting the Order may help focus your case and assist in reaching the desired goal 

(i.e., early informed resolution of your case in a cost-effective manner). 

5. After a date is scheduled with the Court, it may not be continued by stipulation of the parties 

without the Court's consent. It may be continued for good cause after noticed motion. 

IX. MANDATORY SETTLEMENT CONFERENCES (MSC) 

I. No case will be tried before a good faith effort is made to settle. Counsel must advise the 

Court as soon as possible, and in no event later than the date the MSC is set, if there is an 

objection to the trial judge's participation in the mandatory settlement conference. Mandatory 

settlement conferences set on the court's calendar are typically set at the time the trial is set, and 

generally, the final mandatory settlement conference takes place a week to two weeks before the 

first day of trial, typically on a Wednesday. 

2. Trial counsel, parties and persons with full authority to settle the case must personally attend 

unless excused by the Court. If insurance coverage is available to satisfy the plaintiffs settlement 

demand and a representative of defendant's insurer with full settlement authority attends the 

mandatory settlement conference with defendant's trial counsel, named defendants need not attend 

unless their personal consent is necessary to settle the case. Named defendants must also 

personally attend the mandatory settlement conference when (a) there is an insurance coverage 

dispute; (b) plaintiff seeks to recover damages not covered by insurance; or (c) plaintiff's demand 

exceeds insurance policy limits. Failure to appear will result in the imposition of sanctions. 

Settlement Conference Statements must be filed at least five (5) court days before the scheduled 

conference (Rule 3.1380). 

3. If a party objects to the trial judge's participation in the MSC, the party must advise the judge 

or courtroom clerk of its objection prior to the setting of the MSC. If the parties agree to have the 

MSC conducted by a judge other than the assigned judge, the parties should first determine the 

Page 9 of 21 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 59 of 77
Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

other judge's availability before asking the assigned judge to order the settlement conference. 

However, it is presumed that the judge to whom a case is assigned shall conduct the MSC. 

5. Any request for a waiver of the requirement to personally appear at the MSC, whether 

conducted by the Court or a special master, must be made by written application to the Court. 

X. MINI-TRIALS 

There may be a pivotal issue, such as a special defense or evidentiary ruling, upon which the rest 

of the case depends. If counsel agree, the Court will set aside time before or during the trial to 

hear mini-trials on such issues. Time will be appropriately limited. Briefs and factual stipulations 

must be submitted in advance. Limited testimony may be taken, for example, as in an Evidence 

Code § 402 situation. Contact the Coordinator to schedule a date and submit a stipulation signed 

by all affected counsel. 

XI. PRE-TRIAL MEET AND CONFER 

Parties' Pre-Trial Conference - At least 20 days before trial, counsel shall meet and confer and 

execute necessary documents as listed below. Counsel for the plaintiff shall arrange the 

conference at a mutually agreeable time and location. 

At the conference, the parties shall: 

I. Prepare a Joint Statement of the Case. 

2. Prepare a Joint Witness List, excluding impeachment or rebuttal witnesses, with real time 

estimates. 

Witness lists should not be exaggerated. Only witnesses that a party expects to actually call 

should be listed, with a brief synopsis of the proposed testimony. In addition to the list contained 

in the statements, each list should also be prepared in the form attached as follows. A copy should 

be sent, in Excel format, to rwalker(W,scscourt.org. Witnesses should be listed last name first. 

Titles (e.g. Dr., Officer) should be placed after the comma following the last name. This is so that 

lists can be sorted correctly. 

As noted above, Counsel should include in their witness list the amount of time they expect 

to spend on direct examination of each witness. The amount of time should be stated in minutes 

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Superior Court of California, 

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191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

(not days or hours). Counsel must also be prepared to state at the conference how much time they 

will require for cross-examination of each witness identified on the other party's list. 

At the conference the Court will make separate arrangements for the preparation of a joint 

list, for jury selection purposes, of possible witnesses and persons or entities who might otherwise 

be mentioned at trial. 

Format for Witness Lists 

Plaintiffs' List 

Party Direct Cross Redirect Witness (P or (min.) (min.) (min. Total Subject 

D) 

Smith, John p 20 5 40 Formation of 

contract 

Brown, Nancy p 15 5 30 Breach of contract 

White, Ron p 70 15 115 Damages 

Black, Peter p 60 15 105 Formation of 

contract 

Garcia, Dr. Ruth p 120 30 210 Damages 

Rogers, Officer Ted p 60 10 70 Arrest of Susan 

Petersen 

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Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Defendant's List 

Witness 

Doe, Edward 

Chang, Sam 

Martin, Dr. Eric 

Party 

(P or 

D) 

D 

D 

D 

Revised October 5, 2016 

Complex Civil Guidelines 

Direct Cross Redirect 

(min.) (min.) (min. Total Subject 

20 5 35 Formation of 

contract 

75 15 120 Damages 

120 30 210 Damages 

3. Exchange exhibits and inspect photos and diagrams (to be submitted on the date of trial), 

excluding those contemplated to be used for impeachment or rebuttal. Stipulate to all facts 

amenable to stipulation. 

4. Prepare a Joint List of Controverted Issues. If all the parties fail to agree to an issue as 

controverted or uncontroverted, then the issue is controverted. (Required for both jury and nonjury trials) 

5. Exchange all motions in limine, verdict forms, etc. 

6. Prepare voir dire questions for the Court to include when examining the panel. 

7. Execute the Statement of Compliance. 

8. Prepare joint proposed jury instructions (CACI only) and exchange disputed instructions. 

The above items, including opposition to motions in limine, trial briefs and the Statement of 

Compliance signed by all counsel, shall be submitted to the Complex Civil Litigation Desk or to 

the courtroom clerk in the department of the judge to whom the case has been assigned for trial, no 

later than noon of the Friday before trial. 

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Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

XII. TRIALS - GENERALLY 

Revised October 5, 2016 

Complex Civil Guidelines 

1. General Matters - the following applies to all trials (jury and non-jury): 

a. Trials generally will proceed four days a week as follows: Monday through Thursday 

(9:00 a.m. to 4:30 p.m.). The Court will provide the parties, generally at the conclusion 

of the Mandatory Settlement Conference, a proposed trial schedule. 

b. Jury deliberations will proceed five days a week, from 9:00 a.m. to 4:30 p.m. 

c. Trial attorneys should be in the courtroom 15 minutes prior to the start of each morning 

session. Punctuality is not only a courtesy to others, it is required. Counsel should 

expect that the court will take appropriate action if counsel is late for any appearance 

and does not have a justification for a late appearance. 

d. Before rearranging tables or other courtroom furniture, or installing equipment such as 

projectors or screens, permission must first be obtained from the bailiff or the Court. 

e. Unless the Court expressly advises otherwise, counsel may not approach a witness who 

is testifying to hand the witness exhibits, or to help the witness locate portions thereof, 

without first obtaining the Court's permission. 

f. Counsel must advised opposing counsel and the Court of the identity of each witness 

intended to be called by 4:00 p.m. the day preceding the time for the witness of 

witnesses to testify. 

g. Counsel presenting their case shall be expected to have witnesses ready to call through 

at least 4:30 p.m., and may be deemed to have rested their case if they are not prepared 

to proceed. Counsel shall advise the Court immediately of any circumstances which 

may prompt a request for a modification of the established trial schedule. 

h. Counsel should advise the Court at the outset of the proceedings, or as soon as the issue 

become apparent, of any legal issues or evidentiary matters that counsel anticipate will 

require extended time for consideration or hearing outside the presence of the jury. 

1. If during the course of trial, counsel wish to discuss a matter with the Court and 

opposing counsel outside of the presence of the jury, counsel MUST advise the Court 

of this request at the conclusion of the preceding court session and NOT immediately 

before proceedings are scheduled to resume. 

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Superior Court of California, 

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191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

J. The amount of jury fees required to be posted in advance of a jury trial is $150.00. If a 

case settles after jury fees have been deposited, the jury fees will not be returned unless 

the Court is notified of the settlement by 2:00 p.m. on the court day preceding the trial 

date for which the deposit was made. 

k. Counsel must confer in advance of the trial, attempt to stipulate on as many issues and 

facts as possible, and reduce all stipulations to writing. The written stipulation is filed 

and during jury trials is read aloud into the record. 

I. At the end of each day, counsel must clear work areas, including the area in the rear of 

the courtroom. 

2. Documents 

By such time as the Court may direct in a pretrial order (normally no later than 12:00 p.m. 

on the Friday before Monday on which trial is scheduled to begin), counsel for each party 

shall: 

a. Deliver to the clerk and opposing counsel, a list of the witnesses which the party 

anticipates calling as part of its case-in-chief, with a succinct (no more than one or 

two sentences) statement of the general subject matter of the witness' testimony and 

an estimate of the time that will be required for the direct examination of each such 

witness. 

b. Deliver to the Court and opposing counsel proposed jury instructions and a 

proposed form of jury verdict. 

c. Lodge with the clerk the original of all deposition transcripts to be used during the 

course of the trial. If counsel anticipates reading from the deposition transcript for 

any purpose other than impeachment, counsel must deliver to opposing counsel a 

written specification of the pages and lines proposed to be read. 

An extra copy of all motions in limine and supporting and opposing papers filed during 

trial (including in limine motions, proposed jury instructions and verdict forms and exhibit 

indices) shall be delivered to the clerk for use by the Court. 

Counsel seeking to display to the jury any exhibit which required time and equipment to 

observe, such as slides, transparencies, movies, videotapes and audiotapes, MUST make 

such exhibit available to opposing counsel for review prior to commencement of the 

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Superior Court of California, 

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191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

session of court at which the exhibit will be used. Proceedings will not be delayed to 

permit such a review if the review has not occurred by the time court is scheduled to begin. 

3. Technology 

Counsel must meet and confer regarding the use of computers, "elmos", screens and other 

forms of equipment for showing evidence to the jury or Court. Counsel must confer with 

court staff regarding the placement and use of any such equipment. 

4. Stipulations 

Unless counsel states otherwise prior to the commencement of trial, all counsel will be 

deemed to stipulate: 

I. At the commencement of each session of the Court, all parties, attorneys and jurors are 

present unless otherwise indicated. 

2. After the first occasion on which the jury has been admonished not to discuss or 

prejudge the case in conformity with CCP § 611, the jury will be deemed to have been 

so admonished at every subsequent recess or separation without the need for further 

admonition; and 

3. Repo1ting of juror voir dire is waived. 

In addition, counsel will be requested to stipulate that if during the course of trial jurors 

and alternate jurors become unable to serve so that the total number of jurors and alternate 

jurors is reduced to fewer than 12, a verdict may be returned by nine of the 11 or by eight 

of I 0 remaining jurors. 

5. Opening and Closing Arguments 

a. Counsel should avoid discussing routine matters of court procedure - - such as the 

sequence of trial -- in opening statements and closing arguments. These matters 

will be covered by the Court and need not be repeated by counsel. 

b. Do not display charts, diagrams or proposed exhibits to the jury until they have 

been shown to opposing counsel outside of the presence of the jury. If opposing 

counsel indicates no objection, the exhibits or other object may be displayed to the 

jury without first requesting Court approval. If opposing counsel objects, the 

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Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

exhibit or object may not be displayed without Court approvaL which must be 

requested outside the presence of the jury. 

6. Examination of Witnesses 

a. Objections: Counsel should only state the legal ground(s) of objection and, unless the 

Court specifically requests explanation or argument, should refrain from argument, 

elaboration, or any other form of extended objection-making. Counsel may request 

permission to approach the side bar to present argument, but should not approach unless 

and until the Court grants the request. 

b. When calling a witness to testify under Evidence Code section 776, do not announce in 

the presence of the jury that the witness being called under this provision or as a "hostile" 

or "adverse" witness. Simply proceed with the examination of the witness; the Court will 

rule upon the applicability of section 776 only if such a ruling is required by an objection 

asserted by opposing counsel. 

c. Do not propose a stipulation to opposing counsel in the hearing of the jury unless there 

is prior agreement of counsel. 

7. Transcripts 

a. The court reporter is under no obligation to provide transcripts of any portion of the 

proceedings to counsel during the course of trial. If counsel anticipates requesting a 

transcript of the testimony of any witness or other proceedings during the course of 

trial, arrangements should be made with the court reporter in advance so that 

arrangements can be made to obtain a second court reporter if necessary. 

b. If counsel requests any court reporter to prepare a transcript of any portion of the 

proceedings, counsel MUST contemporaneously advise opposing counsel of the 

request and of the precise portions that will be transcribed. 

8. Jury Trials 

a. Motions in limine and other trial-related preliminary motions (such as Evidence 

Code § 402) must be submitted in writing before answering ready. Motions in 

limine may be ruled on by the court without hearing. Such motions should be brief 

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Superior Court of California, 

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191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

and should address specific subject matter. See Amtower v. Photon Dynamics, Inc., 

(2008) 158 Cal.App.4111 1582. 

b. CACI instructions are to be used. Submit proposed instructions in Word format. 

When reasonably possible, mark up the official version rather than retyping so the 

changes are apparent to the Court and other counsel. The Court may send at least 4 

"clean" sets of instructions provided by counsel into the jury room. "Clean" means 

just the text of the instruction, as corrected. Plaintiff has the primary, but not 

exclusive, responsibility to provide the "clean" sets, in binders. 

c. Counsel should consider stipulating to fewer than 12 jurors to try the case. They 

should also consider stipulating to continue with the trial with fewer than 12 jurors, 

should one or more be unavailable. Counsel should be prepared to identify the 

number of alternates that they intend to recommend. 

d. Hardship Requests - Requests by members of the panel to be excused on the ground 

of undue hardship will be considered by the court prior to beginning voir dire 

examination. 

e. Jury selection proceeds generally under the "6 pack" method, modified to fit the 

case. Court and counsel will work out the management of voir dire in accordance 

with CCP § 225.5 to fit the circumstances of the case. Counsel may submit specific 

juror questions for the Court to consider asking during voir dire. 

f. Voir dire examination will initially be directed to 18 members of the jury panel 

seated in the jury box. Any of these 18 panel members excused for cause will be 

replaced by additional panel members before peremptory challenges begin. 

Peremptory challenges will then proceed, directed to the first 12 panel members, 

who will be replaced by the next six panel members in order as any of the 12 are 

peremptorily challenged. The peremptory challenges will continue until the panel 

seated in the jury box is reduced to 11 members, at which time additional panel 

members (normally an additional seven) will be selected and examined prior to 

resuming peremptory challenges. Whenever there are successive passes from all 

parties who have not exhausted their challenges, or all parties exhaust their 

challenges, the jury has been selected and will be sworn. The same process will 

then continue for the selection of alternate jurors. 

g. All challenges for cause will be heard out of the hearing of the jury panel. 

h. The Court will conduct a detailed voir dire examination. Before concluding 

questioning, the Court will ask counsel at the side bar whether they wish the Court 

to address any additional questions to any or all of the panel members, and will 

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Superior Court of California, 

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191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

permit counsel to examine the panel. An appropriate time limit will be fixed by the 

Court. 

1. The Court preinstructs the jury once it is empaneled. CACI Instructions relating to 

the basic responsibilities of the jurors, management of evidence and the like will be 

given and, in most cases, repeated at the close of trial. 

J. Objections of any kind are to be addressed to the Court (not to other counsel) with a 

concise statement of the legal grounds. Argument on the objection without 

invitation by the Court is not permitted. Advise the Court if argument is necessary 

for the record. 

k. Make no references to charts, models, blowups or other demonstrative evidence in 

front of the jury unless: (a) it is in evidence; (b) counsel have previously stipulated 

the item is in evidence; or ( c) you have leave of Court to use the reference. 

XIII. TRIAL EXHIBITS 

1. Introduction 

a. The digitalized representations of such exhibits may be presented to the Jury/Court as 

substitutes for the exhibits themselves. Counsel should keep in mind that one of the 

purposed of the complex project is to enhance the orderly presentation of evidence to the 

fact finder, and to maintain the record for potential post trial proceedings. 

b. Exhibits may be in either electronic or physical form. Physical exhibits are not 

required to be presented in a digitized format. However, at the conclusion of trial the court 

may order that a photo be substituted and stored electronically in lieu of the physical 

evidence. 

c. Parties must exchange exhibits excluding documents for bona fide impeachment at the 

Pre-Trial Meet and Confer. Each counsel must provide the Court with an EXHIBIT LIST 

describing each exhibit, indicating whether the exhibit is to be admitted into evidence by 

stipulation. 

d. Counsel must submit to the Clerk original negotiable instruments for cancellation 

pursuant to Rule 3.1806, unless otherwise ordered by the Court. 

2. Submission of Exhibits 

a. Counsel must provide the Court with the exhibits, plus one copy. Exhibits will be 

marked by the Clerk, as they are identified, in chronological order. Exhibits shall not be 

pre-marked by counsel. 

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191 North First Street 

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Revised October 5, 2016 

Complex Civil Guidelines 

b. Enlargements and transparencies normally will not be admitted into evidence. Any 

large exhibit or transparency should be accompanied by an 8Y2 x 11 version to which the 

exhibit tag is attached. Models, etc. should be photographed if proposed as exhibits. Be 

sure to discuss evidentiary issues of this nature with opposing counsel. 

c. Interrogatories and Requests for Admissions which are expected to be used at trial must 

be extracted and lodged with the Court, and a copy given to counsel, at the appropriate 

time. In jury trials, questions and answers must be read into the record, subject to proper 

objections. The extracts may be submitted as exhibits in a Court trial. In no case will 

entire sets of written discovery documents be lodged or received. 

d. Before trial commences, counsel will be asked to sign a stipulation for the return and 

maintenance of exhibits when the trial is completed. Plaintiff will maintain joint exhibits, 

unless otherwise stipulated. 

3. Use of Deposition Transcripts 

a. Deposition transcripts which are expected to be used at trial must be lodged with the 

Court on the first day of trial. Pertinent provisions must be read into the record in jury 

trials, subject to proper objections. In Court trials, extracts may be submitted and marked 

as exhibits. In no case will an entire transcript be received. 

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Superior Court of California, 

County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Revised October 5, 2016 

Complex Civil Guidelines 

Hon. Peter H. Kirwan 

Judge, Superior Court, State of California, County of Santa Clara 

191 North First Street 

San Jose, CA 95113 

Courtroom Clerk Number, Department 1: (408) 882-2110 

Judicial Assignments and Activities: 

Current: Complex Civil Litigation, January, 2014 - present 

Appointed to the bench, 2006 and re-elected (unopposed) in 2008 

Criminal misdemeanor assignment, 2006 

Criminal Drug Court assignment, 2008-2009 

Civil Trials, October 2009-January 2011 

Civil Case Manager, January, 2011-2014 

Supervising Judge, Civil Division, January, 2012 - January, 2014 

Member, Superior Court Executive Committee, 2013 

Chair, Superior Court Summer Intern Program 2011 

Other professional activities: 

Santa Clara County Bar Association-----Civil Practice Committee 

Executive Committee and Secretary: William A. Ingram Inn, American Inns of Court, 1988 - present 

Frequent lecturer for Continuing Education Programs 

Adjunct Professor-Santa Clara University Law School (2006-Present) Mediation 

Faculty Member----Lincoln Law School---Mediation Techniques 

Education and Practice Experience: 

J.D., Santa Clara University 1986 

B.A., University of California (Berkeley) 198 l 

Partner and Founder: Needham, Davis, Kirwan and Young LLP in San Jose----2001-2006 

Associate and Partner, Hoge, Fenton, Jones and Appel, Inc. in San Jose----1986---2001 

Specialized in business litigation, commercial disputes, insurance litigation and general tort litigation 

Page 20 of 21 

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191 North First Street 

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Revised October 5, 2016 

Complex Civil Guidelines 

Page 21 of 21 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 71 of 77
EXHIBITE 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 72 of 77
TO: FILE COPY 

RE: 

CASE NUMBER: 

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA 

191 N. FIRST STREET 

SAN JOSE, CA 95113-1090 

Magadia v. Wal-Mart Associates. Inc., et al. 

16CV303387 

E-FILED 

12/20/2016 4:08:39 PM 

Clerk of Court 

Superior Court of CA, 

County of Santa Clara 

16CV303387 

Reviewed By:R. Walker 

ORDER AND NOTICE Of REASSIGNMENT OF CASE 

Please be advised that the above entitled complex case has been reassigned for all purposes, 

including discovery and trial, to Department 1 (Complex Civil Litigation), the HONORABLE BRIAN C. 

WALSH presiding, beginning January 3, 2017. 

Please note that all hearing dates remain as set (Department l). 

An updated Joint Case Management Statement shall be filed by the parties at least fifteen ( 15) 

calendar days prior to the next scheduled Case Management Conference. 

Please contact the Complex Civil Litigation Department, (408) 882-2286, if you have any questions. 

Date Issued: December 20, 2016 Hon. Peter H. Kirwan 

Judge of the Superior Court 

If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the 

American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line, 

(408) 882-2690 or the Voice/TDD California Relay Service, (800) 735-2922. 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 73 of 77
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PROOF OF SERVICE 

(Code of Civil Procedure Sections 1013a, 2015.5) 

STATE OF CALIFORNIA 

COUNTY OF LOS ANGELES 

] 

]ss. 

] 

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 address is 515 S. Figueroa Street, Suite 

1250, Los Angeles, California 90071. 

On December 22, 2016, I served the following document(s) described as: NOTICE 

OF ORDER DEEMING CASE COMPLEX AND STA YING DISCOVERY AND 

REASSIGNMENT OF CASE on the interested parties in this action as follows: 

Wal-Mart Associates, Inc. 

c/o CT Corporation System 

818 West 7th Street, Suite 930 

Los Angeles, California 90017 

Agent.for Service of Process 

Wal-Mart Stores, Inc. 

c/o CT Corporation System 

818 West 7th Street, Suite 930 

Los Angeles, California 90017 

Agent for Service of Process 

X BY MAIL: by placing the original or X a true and correct 

copy thereof enclosed, in (a) sealed envelope(s) addressed to the paiiy(ies) 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 materials for mailing with the United States Postal Service. On this 

date, I sealed the envelope(s) containing the above materials and placed the envelope(s) for 

collection and mailing on this date at the address above following our office's ordinary business 

practices. The envelope(s) will be deposited with the United States Postal Service on this date, 

in the ordinary course of business. 

I declare under penalty of pe1jury under the laws of the State of California that the 

above is true and correct. Executed on December 22, 2016, at Los Angeles, California. 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 74 of 77
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NOTICE OF REMOVAL

Matthew Ball (SBN 208881)

matthew.ball@klgates.com

K&L GATES LLP

4 Embarcadero Center, Suite 1200

San Francisco, CA 94111

Telephone: +1 415 882 8200

Facsimile: +1 415 882 8220

Attorneys for Defendants

Wal-Mart Associates, Inc. and Wal-Mart Stores, 

Inc.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA CLARA

Unlimited Jurisdiction

RODERICK MAGADIA, individually and on 

behalf of all those similarly situated, 

Plaintiffs,

v.

WAL-MART ASSOCIATES, INC., a Delaware 

corporation; WAL-MART STORES, INC., a 

Delaware corporation; and DOES 1 through 50, 

inclusive,

Defendants.

Case No.: 16CV303387

NOTICE OF REMOVAL 

TO: THE HONORABLE JUDGES OF THE SUPERIOR COURT OF THE STATE OF 

CALIFORNIA FOR THE COUNTY OF SANTA CLARA;

AND TO: RODERICK MAGADIA, individually and on behalf of all similarly situated, and his 

attorneys of record;

AND TO: THE CLERK OF THE ABOVE-ENTITLED COURT

PLEASE TAKE NOTICE that on January 5, 2017, Defendants Wal-Mart Associates, Inc. 

and Wal-Mart Stores, Inc. (hereinafter collectively “Wal-Mart”), by and through the undersigned 

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 76 of 77
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NOTICE OF REMOVAL

attorneys, filed a Notice of Removal in this action in the United States District Court for the 

Northern District of California. 

A true and correct copy of Defendants’ Notice of Removal is attached hereto as Exhibit A, 

and is herewith served upon Plaintiff and filed with this Court.

Dated this 5th day of January, 2017.

K&L GATES LLP

By: /s/ Matthew Ball

Email: matthew.ball@klgates.com

Attorneys for Defendants Wal-Mart Associates, 

Inc. and Wal-Mart Stores, Inc.

Case 5:17-cv-00062-LHK Document 1-1 Filed 01/05/17 Page 77 of 77