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Steven D. Atlee (SBN: 151025)
satlee@winston.com
Jason C. Hamilton (SBN: 267968)
jhamilton@winston.com
WINSTON & STRAWN LLP
333 S. Grand Avenue
Los Angeles, CA 90071-1543
Telephone:
(213) 615-1700
Facsimile:
(213) 615-1750
Attorneys for Defendants,
AMERICAN RESIDENTIAL SERVICES L.L.C., and
A R S AMERICAN RESIDENTIAL SERVICES OF ALIFORNIA, INC.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SANTA CLARA
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333
333
South
S. Grand
Grand
Avenue
Avenue
Los Angeles, CA 90071-1543
Winston & Strawn LLP
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VIRGINIA L. BARNES, individually and
behalf of others similarly situated,
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)
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Plaintiff,
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v.
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AMERICAN RESIDENTIAL SERVICES
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L.L.C., A R S AMERICAN RESIDENTIAL
)
SERVICES OF CALIFORNIA, INC., HALO )
WATER SYSTEMS, LLC, GLEN BLAVET, )
as an individual, and DOES 1 through 100,
)
)
Defendants.
)
)
)
_______________________________________)
Case No. 1-10-CV-183947
ASSIGNED FOR ALL PURPOSES TO:
Hon. James P. Kleinberg
Dept. 1
[PROPOSED] ORDER GRANTING ARS’S
MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S THIRD AMENDED
COMPLAINT
Date: November 9, 2012
Time: 9:00 a.m.
Department: 1
Complaint Filed: September 30, 2010
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[PROPOSED] ORDER GRANTING ARS’S MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S THIRD AMENDED COMPLAINT
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[PROPOSED] ORDER
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Having considered the motion of defendants American Residential Services, L.L.C.
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and A R S American Residential Services of California, Inc. (collectively, “ARS”) to strike portions
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of the Third Amended Complaint (“TAC”) of Plaintiff Virginal Barnes (“Plaintiff”), and all
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supporting and opposing papers and oral argument, IT IS HEREBY ORDERED that:
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1.
ARS’s Motion to Strike Portions of Plaintiff’s TAC is GRANTED.
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2.
Specifically, the following portions of Plaintiff’s TAC are stricken:
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
“Plaintiff alleges that RESCUE ROOTER violates the California laws regulating contractors
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Winston & Strawn LLP
At Page 2, Paragraph 3, in its entirety:
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by employing individuals who do not have plumbing licenses and who do not qualify for any
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exemption from the licensing law, to perform services at consumers’ homes for which a plumbing
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license is required by law.”
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
“RESCUE ROOTER”
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At Page 3, line 1, in Paragraph 6:
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At Page 8, in Paragraph 43:
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“under the law, a waiver of the three-day right to cancel is valid only as to emergency repairs
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initiated by the consumer, and is invalid as to non-emergency repairs, and is also invalid as to repairs
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suggested by the seller.”
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“Under California law, a Class C-55 water conditioning license is required for the installation
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of the HALO device that the RESCUE ROOTER personnel installed at Plaintiff’s house.”
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At Page 9, line 2, in Paragraph 48:
“by unlicensed employees of Defendant,”
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At Page 8, Paragraph 46 in its entirety:
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At Page 13, line 22-24, in Paragraph 75(b):
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“who, during a home visit arranged as a result of that contact, entered into a ‘home
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solicitation contract’ with RESCUE ROOTER on or after September 30, 2006 for ‘goods’ and/or
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‘services’ (as each of those terms is defined in Section 1689.5 of the Civil Code) beyond those
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requested in the original service request.”
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[PROPOSED] ORDER GRANTING ARS’S MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S THIRD AMENDED COMPLAINT
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“or (2) the contract included the installation of a water treatment device”
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
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
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Stage’ or”
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S. Grand
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Los Angeles, CA 90071-1543
Winston & Strawn LLP
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Stage’ or”

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Stage’ or”
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of magnets (including”; and
“‘HALO Mini Series 3’ or ‘HALO Ion’)”
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of magnets (including”; and
“‘HALO Mini Series 3’ or ‘HALO Ion’)”
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At Page 15, line 12-13, in Paragraph 75(d)(ii)(a):
“HALO device claimed to affect the buildup of minerals in residential plumbing by the use
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At Page 15, line 7-8, in Paragraph 75(d)(ii):
“HALO device claimed to affect the buildup of minerals in residential plumbing by the use
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At Page 15, line 4-5, in Paragraph 75(d)(i)(b):
“HALO device for which health claims were made (including ‘HALO Pure,’ ‘HALO 3-
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At Page 15, line 2, in Paragraph 75(d)(i)(a):
“HALO device for which health claims were made (including ‘HALO Pure,’ ‘HALO 3-
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At Page 14 line 24-25, in Paragraph 75(d)(i):
“HALO device for which health claims were made (including ‘HALO Pure,’ ‘HALO 3-
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At Page 14, line 22, in Paragraph 75(d):
“water treatment device”
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At Page 14, line 20, in Paragraph 75(c)(i):
“or (2) the contract included the installation of a water treatment device”
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At Page 14, line 13, in Paragraph 75(c):
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At Page 15, line 15-16, in Paragraph 75(d)(ii)(b):
“HALO device claimed to affect the buildup of minerals in residential plumbing by the use
of magnets (including”; and
“‘HALO Mini Series 3’ or ‘HALO Ion’)”
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[PROPOSED] ORDER GRANTING ARS’S MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S THIRD AMENDED COMPLAINT
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“Defendants advertised goods or services with intent not to sell them as advertised in
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violation of Civil Code Section 1770(a)(9), and represented that a transaction confers or involves
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rights, remedies or obligations which are prohibited by law in violation of Civil Code Section
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1770(a)(14), when they represented to the License 765155 Three-Year Subclass Members that they
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were licensed, by displaying license number 765155 on the contracts, but omitted to state the
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material fact that the plumbers who would perform the purported inspection and repairs were not
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licensed, did not qualify for any exemption to the licensing law, and were not directly supervised and
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controlled by a bona fide Responsible Managing Employee as required by the laws regulating
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Winston & Strawn LLP
At Pages 17-18, Paragraph 91 in its entirety:
plumbing contractors.”
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At Page 18, Paragraph 92 in its entirety:
“Defendants represented that a transaction confers or involves rights, remedies or obligations
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which are prohibited by law, in violation of Civil Code Section 1770(a)(14), when they represented
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to the HALO Health Claims Three-Year Sub-subclass and Magnetic Device Three-Year Sub-
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subclass Members that they would install water conditioning equipment, when in reality they were
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prohibited by law from doing so because they lacked a Class C-55 license.”
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At Page 18, Paragraph 93 in its entirety:
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“Defendants represented that a transaction confers or involves obligations which are
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prohibited by law, in violation of Civil Code Section 1770(a)(14), when they purported to obtain a
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waiver of the Civil Code Section 1689.6 right to cancel from the Waiver Three-Year Subclass
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Members, but failed to disclose that a waiver of that right where the seller does not obtain a separate
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statement that is dated and signed that describes the situation that requires immediate remedy, and
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expressly acknowledges and waives the right to cancel, or a waiver of that right as to a water
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treatment device, is prohibited by law.”
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At Page 19, Paragraph 100 in its entirety:
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“Defendants violated Civil Code Section 1689.5 et seq., made applicable to sales of water
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treatment devices by Business & Professions Code Section 17577.3, by installing water treatment
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devices before midnight of the third day after the buyer signed the contract.”
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[PROPOSED] ORDER GRANTING ARS’S MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S THIRD AMENDED COMPLAINT
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“Defendants violated Section 17577.2(a) by making untrue and misleading statements in
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connection with sales of water treatment devices.”
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At Page 20, Paragraph 110 in its entirety:
“Defendants violated Section 17577.2(c) by making health benefit claims regarding the
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Winston & Strawn LLP
At Page 20, Paragraph 106 in its entirety:
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HALO device when the device had not been certified by the California Department of Public Health
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(CDPH).”
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At Page 21, Paragraph 111 in its entirety:
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“Defendants violated Section 17577.3 by delivering and installing water treatment devices at
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consumers’ homes before the end of the three-day rescission period of Civil Code Section 1689.5 et
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seq.”
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At Page 21, Paragraph 112 in its entirety:
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“Defendants violated Section 17577.6(d) by purporting to procure a waiver of consumers’
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rescission rights for purchases of water treatment devices, when under the statute such a waiver is
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void and unenforceable as contrary to public policy.”
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At Pages 21-22, Paragraph 117 in its entirety:
“Plaintiff and Members of the HALO Class were induced to contract for the purchase and
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installation of water treatment devices by Defendants’ false representations that the HALO devices
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may legally be sold and installed as advertised in California, while failing to disclose the material
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facts that the device had not been certified in California and that Defendants lacked the Class C-55
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license required for installation of water conditioning equipment.”
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“lacked the licensure required to perform legitimate safety inspections and water treatment
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device installation, that said employees”; and
“and did not qualify for any exemption from the licensing law”
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At Page 22, line 6-9, in Paragraph 119:
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At Page 22, line 15-16, in Paragraph 120:
“HALO Health Claims One- Year Sub-subclass and”
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[PROPOSED] ORDER GRANTING ARS’S MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S THIRD AMENDED COMPLAINT
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“delivered by salespersons lacking the licensure required by law for a plumber exercising
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discretion so as to make recommendations regarding work to be performed.”
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not licensed as plumbers and who do not qualify for any exemption from the licensing law may not
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legally perform safety inspections and recommend work to be done.”
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At Page 24, line 11, in Paragraph 129:
“, HALO Mini Series 3 and HALO Ion”
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At Page 25, Paragraph 136 in its entirety:
“Defendants engaged in unlawful, unfair and fraudulent business practices in violation of the
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At Page 23, line 14-17, in Paragraph 125:
“and knew or by exercise of reasonable care should have known that salespersons who are
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Winston & Strawn LLP
At Page 23, line 8-9, in Paragraph 124:
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UCL by selling consumers a water treatment device in violation of state law, in that Defendants
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made health benefit claims regarding the HALO device, and Business and Professions Code Section
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17577.2(c) prohibits the making of health benefit claims regarding a water treatment device unless
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the device is certified by the California Department of Health, and yet the HALO device was not so
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certified.”
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“, HALO Mini Series 3 and HALO Ion”
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At Page 26, line 5, in Paragraph 141:
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At Page 27, Paragraph 150 in its entirety:
“Defendants’ employees lacked the required licensure and did not qualify for any exemption
from the licensing laws.”
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IT IS SO ORDERED.
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Dated: __________________
By: _________________________________________
THE HONORABLE JAMES P. KLEINBERG
Santa Clara Superior Court Judge
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[PROPOSED] ORDER GRANTING ARS’S MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S THIRD AMENDED COMPLAINT
1
Submitted by:
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WINSTON & STRAWN LLP
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By:
Steven D. Atlee
Jason C. Hamilton
Attorneys for Defendants,
AMERICAN RESIDENTIAL SERVICES
L.L.C. and A R S AMERICAN
RESIDENTIAL SERVICES OF
CALIFORNIA, INC.
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333
333
South
S. Grand
Grand
Avenue
Avenue
Los Angeles, CA 90071-1543
Winston & Strawn LLP
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[PROPOSED] ORDER GRANTING ARS’S MOTION TO STRIKE PORTIONS OF
PLAINTIFF’S THIRD AMENDED COMPLAINT