Official Notice of Pendency of Class Notice

Here is the notice that has now been approved by the Court. I will post a copy of the notice including the Judge's signature as soon as it is provided to me.

Please pass this on - forward it to every party you might think remotely interested, including media outlets you think may have an interest in sharing this information. If you are familiar with anyone who joined Kimkins, please direct them to this notice so that as many of the 40,000 people affected by Heidi's little scam as possible will have the opportunity to know they are part of the class and can opt out, preferring instead to allow Heidi to keep their money, or, perhaps, retaining their right to sue her independently.

If you previously posted this on your blog, please replace the pending version with this official one. Thank you!

Hear that banging sound? Just another handful of nails ...

NOTICE OF PENDENCY OF CLASS ACTION

TO: EVERYONE WHO PURCHASED A MEMBERSHIP TO KIMKINS.COM THROUGH THE KIMKINS.COM WEB SITE (www.kimkins.com) FROM JANUARY 1, 2006 TO OCTOBER 15, 2007

PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A CLASS-ACTION LAWSUIT THAT IS CURRENTLY PENDING IN RIVERSIDE COUNTY SUPERIOR COURT, IN RIVERSIDE, CALILFORNIA.

INTRODUCTION

1. On May 20, 2009, the Riverside County Superior Court, located in Riverside, California, issued an order certifying this case to proceed as a class action.

2. The plaintiffs are six individuals who bought memberships to kimkins.com through the kimkins.com Website (www.kimkins.com) from January 1, 2006 to October 15, 2007. The defendants are Heidi Diaz, an individual, and Kimkins (also known as Kimkins.com), a business entity that conducts business in Corona, California.

3. The plaintiffs contend that Diaz and Kimkins.com induced them into buying memberships for kimkins.com through false and misleading information provided on the Kimkins.com Web site. The plaintiffs contend that the defendants violated California Business & Professions Code § 17200, et seq., which authorizes courts to provide relief from unfair, unlawful, and fraudulent business practices. The plaintiffs also contend that Diaz and Kimkins.com violated common law prohibitions against fraud and negligent misrepresentation.

4. This notice provides you with information regarding the litigation, including the plaintiffs’ claims against the defendants and the current status of the litigation. This notice also provides you with information regarding the court’s class-certification order.

THE LITIGATION

The Plaintiffs’ Claims

5. This lawsuit is based on the plaintiffs’ claims that Diaz and Kimkins used unfair, unlawful, or fraudulent business practices to induce them into buying memberships to Kimkins.com. This lawsuit is also based on the plaintiffs’ claims that the false and misleading information contained on the kimkins.com Web site constituted fraud or negligent misrepresentation by Diaz and Kimkins.

6. Here’s a list of the kinds of misconduct that the plaintiffs have alleged:

• that Diaz and Kimkins concocted a false persona, “Kim Drake” or “Kimmer” to sell memberships to Kimkins.com
• that Diaz and Kimkins misled potential members into believing that “Kim Drake” was real by using photos of real women and then falsely claiming that the photos depicted “Drake”
• that Diaz and Kimkins posted lied about “Drake’s” purported weight loss
• that Diaz and Kimkins provided false or misleading information to Women’s World magazine
• that Diaz and Kimkins fabricated 41 “success stories” and published on the Kimkins.com Web
• that Diaz and Kimkins made up celebrity endorsements
• that Diaz and Kimkins misused labels and metatags to steer Internet traffic to the Kimkins.com Website, in violation of the law
• that Diaz and Kimkins misled potential members into believing that they were buying lifetime memberships, when in fact Diaz and Kimkins.com terminated memberships at their whim
• that Diaz and Kimkins intended to mislead potential members and assumed that potential members would rely on her misrepresentations.

The Defendants’ Position

7. Diaz and Kimkins have denied all allegations of wrongdoing and liability, and they continue to deny that they have done anything wrong. Diaz and Kimkins also have asserted various affirmative defenses to the plaintiffs’ claims.

THE COURT’S CLASS-CERTIFICATION ORDER

8. In an order filed May 20, 2009, the Court granted the Plaintiffs’ Motion for Class Certification. The Court certified for class treatment the plaintiffs’ claims for equitable relief, including disgorgement of the subscription fees paid to Diaz and Kimkins by the plaintiffs and the members of the class.

9. The certified class is defined as all individuals who purchased the Kimkins.com diet membership on-line from the Kimkins.com Web site from January 1, 2006 through October 15, 2007.

THE COURT HAS NOT EXPRESSED ANY OPINIONS
REGARDING THE MERITS OF THE PLAINTIFFS’ CLAIMS

10. The Court ordered that this notice be provided to advise class members that this case is pending and that the Court has certified the case to proceed as a class action. You should not consider this notice or its mailing to be a statement by the Court that the plaintiffs are right or that their claims will prevail.

INSTRUCTIONS TO CLASS MEMBERS

11. You do not need to do anything to remain a member of the class. If you bought a Kimkins.com diet membership on-line from the Kimkins.com Web site from January 1, 2006 through October 15, 2007—including either of those dates—you are automatically included in the class. Your rights will be represented by the plaintiffs and their attorneys. You will not be personally responsible for any attorney fees or for the any of the costs of this litigation.

OPT OUT OF CLASS ACTION LAWSUIT

12. You have the opportunity to opt out of the class action lawsuit as detailed herein. If you incurred a personal injury as a result of using the Kimkins.com aka Kimkins Diet, you have a right to opt out. Notices to opt must be sent to jtiedt@tiedtlaw.com or mailed to Tiedt & Hurd at 980 Montecito Drive, Suite 209, Corona, California 92879.

WHERE TO GO & WHOM TO CONTACT
SHOULD YOU NEED MORE INFORMATION

13. This notice provides only a brief summary of this litigation. For further details, you should take one or both of the following steps:

• Review the documents in the Court’s file for this lawsuit. Many of these documents may be viewed or obtained on-line at the following URL: http://public-access.riverside.courts.ca.gov/OpenAccess/ . You also may review the Court’s file in person by going to the Office of the Clerk of the Court for the Riverside Superior Court, during regular business hours. The Clerk’s office is located at 4050 Main Street, Riverside, California 92501.

• Write a letter to the attorneys who are representing the plaintiffs and whom the Court has appointed to represent the class. Here are their names and their contact information:

John E. Tiedt & Marc S. Hurd
Tiedt & Hurd
980 Montecito Drive, Suite 209
Corona, California 92879

Michael L. Cohen
Michael L. Cohen, a PLC
707 Wilshire Blvd., Suite 4100
Los Angeles, California 90017

Ray Moore
Moore Winter McLennan LLP
701 N. Brand Blvd., Suite 200
Glendale, California 92103-4232

If you decide to contact one of the plaintiffs’ attorneys, please do so in writing. To make it easier for them or one of their staff members to respond, however, your letter should include both your e-mail address and your telephone number.

There are estimated to be as many as 40,000 members in the class. So please, DO NOT CALL THE COURT OR ATTEMPT TO CONTACT THE COURT BY E-MAIL.


DATE: ___________________________, 2009


____________________________________
Hon. _________________________,
Presiding Judge

Courts Subsequent Ruling on 11/02/09

From the Riverside Court Website minutes:

COURTS SUBSEQUENT RULING ON 11/02/09 @ 08:00 FOR DEPARTMENT RIDST 11/02/2009 - 8:00 AM DEPT. 05

HONORABLE MARK E JOHNSON, PRESIDING
CLERK: M. MARTINEZ
COURT REPORTER: NONE

COURT SUBSEQUENTLY RULES:
ORDER REGARDING CLASS THE COURT MAKES THE FOLLOWING ORDER REGARDING
CLASS NOTICE. THE NOTICE SHALL READ AS FOLLOWS:
HEIDI DIAZ AND KIMKINS.COM ARE DEFENDANTS IN A LAWSUIT THAT HAS BEEN CERTIFIED AS A NATIONWIDE
CLASS ACTION: JEANESSA FENDERSON, ET AL. V HEIDI DIAZ, ET AL., CASE NO. RIC483005, PENDING IN THE
RIVERSIDE COUNTY SUPERIOR COURT IN RIVERSIDE, CALIFORNIA. TO LEARN MORE ABOUT THE LAWSUIT,
PLEASE CLICK ON THE FOLLOWING LINK:
THE TEXT SHOULD BE PROMINENTLY DISPLAYED ON THE LOWER HALF OF THE FIRST PAGE OF THE KIMKINS.COM
WEB SITE. IT SHOULD BE 12 POINT, TIMES NEW ROMAN FONT WITH A BOX AROUND IT AS ABOVE.

CLERK'S CERTIFICATE OF MAILING RE: MINUTE ORDER
NOTICE SENT TO MICHAEL L COHEN A PROFESSIONALLAW CORP ON 11/02/09
NOTICE SENT TO MOORE WINTER MCLENNAN LLP ON 11/02/09
NOTICE SENT TO TIEDT & HURD ON 11/02/09
NOTICE SENT TO LAW OFFICE OF TIMOTHY P PEABODY ON 11/02/09
NOTICE SENT TO LAW OFFICES OF COTTLE & KEMP ON 11/02/09
NOTICE SENT TO COTTLE & KEEN ON 11/02/09

Hearing Re Finalizing of Notice 10/29/09

From the Riverside Court Website minutes:

HEARING RE FINALIZATION OF NOTICE 10/29/2009 - 8:30 AM DEPT. 05
HONORABLE MARK E JOHNSON, PRESIDING
CLERK: D. MATHIEU
COURT REPORTER: D. FRINGER
JEANESSA FENDERSON REPRESENTED BY MICHAEL L COHEN A PROFESSIONALLAW CORP - JOHN TEIDT PRESENT.
HEIDI DIAZ REPRESENTED BY LAW OFFICE OF TIMOTHY P PEABODY - TIMOTHY PEABODY PRESENT.
FINALIZATION OF NOTICE IS TAKEN UNDER SUBMISSION.
TRIAL SETTING CONFERENCE SET FOR 04/27/10 @ 08:30 IN DEPT. 01.
TRIAL STATUS CONFERENCE SET.

Courts Subsequent Ruling on 10/27/09

From the Riverside Court website:

COURTS SUBSEQUENT RULING ON 10/27/09 @ 08:30 FOR DEPARTMENT 05 10/27/2009 - 8:30 AM DEPT. 05
HONORABLE MARK E JOHNSON, PRESIDING
CLERK: M. MARTINEZ
COURT REPORTER: NONE
COURT SUBSEQUENTLY RULES:
ORDER REGARDING CLASS NOTICE: THE COURT FINDS THAT CLASS MEMBERS SHOULD BE
ALLOWED TO OPT OUT IN CONNECTION WITH THE CLASS ACTION CERTIFIED IN THE ABOVE ENTITLED ACTION.
THE CLASS ACTION WAS NOT CERTIFIED FOR THE PERSONAL INJURY CLAIMS ALLEGED BY CLASS
PLAINTIFFS. FAILURE TO ALLOW CLASS MEMBERS TO OPT OUT OF THE ACTION MAY IMPAIR OR ELIMINATE
POTENTIAL PERSONAL INJURY CLAIMS BECAUSE A JUDGMENT IN THIS ACTION COULD BAR RECOVERY IN
ANY LATER PERSONAL INJURY ACTIONS BROUGHT BY CLASS MEMBERS AGAINST DEFENDANTS. (SEE HICKS V.
KAUFMAN & BROAD (2001) 89 CAL.APP.4TH 908 924-925.)
THUS, IT APPEARS THAT THE OPPORTUNITY TO OPT OUT OF THIS CLASS ACTION IS NECESSARY. (SEE
PHILLIPS PETROLEUM CO. V. SHUFFS (1985) 472 U.S. 797, 811-812.) ACCORDINGLY, PLAINTIFFS PROPOSED
CLASS NOTICE NEEDS A STATEMENT WHICH GIVES POTENTIAL CLASS MEMBERS WHO MAY HAVE SUFFERED
PERSONAL INJURIES AN APPROPRIATE CAVEAT REGARDING POTENTIAL PERSONAL INJURY CLAIMS,
PROVIDES THE OPPORTUNITY TO OPT OUT, AND PROVIDES A PROCEDURE FOR OPTING OUT. (SEE
CHAVEZ V. NETFLIX (2008) 162 CAL.APP.4TH 43, 57.)
IN ADDITION, PLAINTIFFS SUBMISSION DOES NOT EXPLAIN WHY CLASS NOTICE CANNOT BETTER BE
PROVIDED THROUGH DEFENDANTS OWN WEBSITE TO ALL PERSONS WHO SIGNED UP THROUGH THE WEBSITE.
ACCORDINGLY, THE COURT ORDERS THAT CLASS NOTICE SHALL BE PROVIDED THROUGH DEFENDANTS WEBSITE.
THE COURT MAKES THIS DECISION BECAUSE THE LAWSUIT HAS ALREADY BEEN REFERENCED ON THE
KIMKINS WEBSITE. THE NOTICE MAY BE THROUGH A LINK ON THE WEBSITE WHICH LEADS TO THE CLASS
NOTICE.
FINALLY, ALL REFERENCES TO THE "PENDING MOTION FOR SUMMARY JUDGMENT" SHALL BE REMOVED FROM THE
CLASS NOTICE.
NOTICE TO BE GIVEN BY COURT
CLERK'S CERTIFICATE OF MAILING RE: SUBSEQUENT RULING
NOTICE SENT TO MICHAEL L COHEN A PROFESSIONALLAW CORP ON 10/27/09
NOTICE SENT TO MOORE WINTER MCLENNAN LLP ON 10/27/09
NOTICE SENT TO TIEDT & HURD ON 10/27/09
NOTICE SENT TO LAW OFFICE OF TIMOTHY P PEABODY ON 10/27/09
NOTICE SENT TO LAW OFFICES OF COTTLE & KEMP ON 10/27/09
NOTICE SENT TO COTTLE & KEEN ON 10/27/09

Hearing Re Motion for Order For Conduct of Class Action 10/15/09

from the Riverside Court website:

HEARING RE MOTION FOR ORDER FOR CONDUCT OF CLASS ACTION 10/15/2009 - 8:30 AM DEPT. 05
HONORABLE MARK E JOHNSON, PRESIDING
CLERK: M. MARTINEZ
COURT REPORTER: D. FRINGER
JEANESSA FENDERSON, KARIN BILLECI, TRISTA ESSEX, HEIDI MARTINEZ, KATHLEEN ROGERS, DIANA SHERBY, CONNIE STEINROCK, CATHERINE MCGINNIS REPRESENTED BY MICHAEL L COHEN A PROFESSIONALLAW CORP - MICHAEL COHEN AND JOHN TIEDT PRESENT.
HEIDI DIAZ REPRESENTED BY LAW OFFICE OF TIMOTHY P PEABODY - TIMOTHY PEABODY PRESENT.
COUNSEL ARGUE.
MATTER TAKEN UNDER SUBMISSION.
HEARING RE FINALIZATION OF NOTICE SET 10/29/09 AT 08:30 DEPT 05
NOTICE WAIVED.

Case Management Statement by Heidi Diaz

10/14/2009

CASE MANAGEMENT STATEMENT BY HEIDI DIAZ FILED UNTIMELY PURSUANT TO CRC 3.725

Opposition to Motion for Summary Judgement

from Riverside Court website:

08/10/2009
OPPOSITION TO MOTION FOR SUMMARY JUDGMENT BY HEIDI DIAZ, KIMKINS FILED

Proposed Notice of Pendency of Class Action

This is NOT an official notice. This notice is proposed to the court by plaintiffs’ counsel June 26, 2009. If you choose to duplicate this notice on any blog or website, this notice MUST be included.

Late Breaking Lawsuit News

A Motion for Summary Judgment has been filed with the Riverside Courts by John Tiedt, attorney for the Plaintiffs in the Class Action Lawsuit pending against Heidi Diaz, founder of Kimkins, a diet site which was established based on fraudulent claims made by Ms. Diaz, namely that she had lost 198 pounds over a 10 month period of time, had maintained that loss for 5 years and was qualified to advise and assist others in mirroring her success. As we know, she supported her claims with fraudulent before and after pictures of both herself and her many claimed success stories. We also know that she did NOT lose 198 pounds in 10 months, or over any period of time, for that matter. She didn't lose 100 pounds. She might have lost 50. There is not 5 years of maintenance, there are not before and after photos.

A Motion for Summary Judgment basically appeals to the court to save the tax payers the cost of a trial as the admitted facts of the case are clear enough to render a decision. The Motion that John filed is many, many pages long and, as usual, is filled with a plethora of indisputable facts to support the request. A hearing has been set to hear the motion on August 24, 2009 at 8:30 am in Riverside County. The State of California requires an 80 day waiting period before such a hearing to allow the court and all parties involved to properly prepare for the hearing.

This is not simply a routine procedure. In fact, it is rather unusual in a case of this nature. However, John believes strongly that the facts in this case warrant this action. He has proven to us time after time just how strong a case has been built, thanks to the tireless work done by so many people to bring the facts to light.

Class Certified!

It's totally official this time!

The Kimkins Class Action Lawsuit is CERTIFIED!

Now on to the next step!

There are 12 Steps of a Class Action Lawsuit
Filing – Case Initiated – A complaint is filed by the attorney(s) on behalf of the plaintiff(s).
Response – The defendant(s) respond(s) with an answer, motion to dismiss or other legal pleading.
Discovery – Both sides disclose evidence to each other that supports their respective cases.
Certification Request – Plaintiff(s) file(s) a motion to certify the case as a class action.
Certification Opposed – Defendant(s) file(s) opposing briefs to the plaintiff(s) motion for class certification.
Class Action Certification – Judge certifies or denies the class action (if the judge denies, the case can continue as individual lawsuit(s) filed by the plaintiff(s).
Notification – If certified, notification of class action to prospective claimants, who must choose whether to stay in the case or file their own individual case.
Trial – Case is either set for trial, in trial, or has been tried before a judge or jury.
Appeal – A judgment of the trial court has been appealed to a higher level court.
Settlement Phase – Deadline is set for class action members to submit claims with supporting documentation.
Pay Out – Proceeds are distributed to class members.
Dismissed – A case can be dismissed at any point during the ten-stage process. This is not actually a stage, but the end of the process. This means that the case has terminated, at least for now, without the plaintiffs receiving any relief. The plaintiffs may have voluntarily dismissed the case, or the court may have ordered the case to be dismissed. Depending on the circumstances, the plaintiff may be able to file the action again later.
NOTE: The steps outlined above are only meant as a general guide, and may not be applicable to all class action cases. Some class actions will proceed to trial when settlement between the parties cannot be reached.

Diaz Case Is Dismissed!

What a wonderful way to start a Saturday morning!

We've got great news from John Tiedt and Scott Clarkson today!

The US Bankruptcy Court has DISMISSED the Diaz Case!

A tremendous THANK YOU to both John Tiedt and Scott Clarkson for their determination and perseverence in pursuing this case.

The Bankruptcy was just an obstacle with which Ms. Diaz attempted to slow down the wheels of justice. The obstacle has been removed and the wheels will continue moving. It's not over just yet. There is still much more to be done. Stay tuned. We'll keep you posted of the progress, as we can.

BREAKING NEWS

(que ticker tape sound)

This just in ...

A message from the Kimkins Class Action attorney ...
In the matter of the counter suit filed against several of the witnesses in the case against Heidi Diaz and Kimkins ...

"All seven of our motions to quash were granted today. Heidi lost. Heidi’s new attorney showed up today and tried to get the court to continue the matter but the judge emphatically denied that request. The court decided to hear all 7 since Mr. Peabody showed up."

Great job, John!

My guess is Mr. Peabody's usefulness to Heidi has worn itself out as of today. At the least, I hope he understands that he has hitched his wagon to a falling star ...

Top Notch Bankruptcy Attorney Added to Legal Team

John Tiedt, Kimkins Class Action Lawsuit attorney, has now secured the services of Scott C. Clarkson, a specialist in bankruptcy and reorganization, to take on the task of attacking head on Heidi Diaz's latest attempts to use the court system to thwart the civil actions being taken against her.

There is a saying ... Birds of a feather flock together. When you consider the caliber of legal representation that John brings to our side of the table that saying certainly is proving to hold true.

For more details, please read:

Prudentia - Allow Me To Introduce...

Extra Extra Read all about it.......

Case RIC483005 - FENDERSON VS DIAZ
Action:

HEARING RE: MOTION TO/FOR CLASS CERTIFICATION * BY JEANESSA FENDERSON
01/14/2009 - 8:30 AM DEPT. 04

HONORABLE MICHAEL B DONNER, PRESIDING
CLERK: L. HALL
COURT REPORTER: T. FOSTER
JEANESSA FENDERSON, KARIN BILLECI, TRISTA ESSEX, HEIDI MARTINEZ, KATHLEEN ROGERS, DIANA SHERBY REPRESENTED BY MICHAEL L COHEN A PROFESSIONALLAW CORP - JOHN TIEDT PRESENT.
MOTION FOR CLASS CERTIFICATION IS GRANTED.
FORMAL ORDER TO BE PREPARED, SERVED AND SUBMITTED BY COUNSEL FOR PLAINTIFF

Heidi files for Bankruptcy

We’ve all known for a while now that the Kimkins Diet was nutritionally bankrupt.

Now, in an obvious attempt to throw a wrench in the works of the pending litigation and slow the wheels of justice, Ms. Diaz has filed today for Chapter 11 Bankruptcy protection. Ironically, the Kimkins Class Action Lawsuit had a class certification hearing scheduled for Wednesday, January 14. Now all that is on hold, as the Bankruptcy Court now has jurisdiction.

Kimkins Class Action Lawsuit attorney, John Tiedt says, “We will not be deterred. We will not stop until we have justice. We anticipated the possiblity of bankruptcy. This is Ms. Diaz’s third bankruptcy. We are now obtaining a bankruptcy litigator to join our team. Our attack on the bankruptcy will start immediately. I will never stop.”

Ms. Diaz’ bankruptcy application was filed by her latest attorney, Timothy Peabody, Esq. She must feel that three times is a charm, as this is her third time filing for bankruptcy.

Ms. Diaz recently dismissed the attorney who represented her for the Kimkins Class Action Lawsuit,

Bert Cottle. Perhaps Mr. Cottle was not well versed in bankruptcy law?

Stay tuned for more of Kimmer’s shenanigans as they are revealed.

For further reading:

Prudentia: Out of the hat comes ...
Prudentia: Can a Leopard Change Spots?
Prudentia: It's That Pesky Lawsuit, I Tell You!
Prudentia: Finer Points
Prudentia: Setting the Record Straight