Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-02229-WQH-WMC

Document 5

Filed 12/27/2007

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GIOVANNIELLO & MICHELS, LLP Alexander F. Giovanniello (CSB# 125562) 1470 South Valley Vista Drive, Suite 200 Diamond Bar, California, 91765 Ph: (909) 396-1964 Fax (909) 396-0885 Attorneys for DEFENDANT RENESTER VILLA, LLC dba THE VALLEY INN n/k/a BLOSSOM VALLEY INN (erroneously sued and served as Blossom Valley Inn) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA WILLIAM A. HOGUE, by and through ) ) his Guardian Ad Litem CASSI ) DePAOLI; ) ) ) Plaintiff, ) ) vs. ) ) CITY OF HOLTVILLE, A Public ) Entity; OFFICER BARRY FORNEY, ) ) an Individual; OFFICER THOMAS IP, ) an Individual; BLOSSOM VALLEY ) ) INN, business form unknown, TINA ) TOTEN, an Individual; NURSE DOE ) #21, an Individual; and DOES 1-100, ) ) Inclusive, ) ) ) Defendants. ) ) ) Case No.: 07 CV 2229 WQH (WMC) DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES FRCP 12(b)(6) NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Date: February 4, 2008 Time: 11:00 a.m. Courtroom: 4

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on February 4, 2007, at 11:00 a.m., or as soon thereafter as the matter may be heard in Courtroom 4, of the above-entitled
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MOTION TO DISMISS (07 CV 2229)

Case 3:07-cv-02229-WQH-WMC

Document 5

Filed 12/27/2007

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court located at 940 Front Street, San Diego, California 95113, Defendant RENESTER VILLA, LLC dba THE VALLEY INN n/k/a BLOSSOM VALLEY INN (erroneously sued and served as Blossom Valley Inn) (hereinafter "Defendants") will move this Court for an order to dismiss portions of Plaintiff's Complaint (the Complaint) pursuant to FRCP 12(b)(6). This Motion will be based on the grounds that Plaintiff's Complaint, specifically, (1) the Fifth Cause of Action for Breach of Written Contract; (2) the Sixth Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing; (3) the Eighth Cause of Action for General Negligence; (4) the Ninth Cause of Action for Elder Neglect and Abuse; (5) the Tenth Cause of Action for Fraudulent Misrepresentation; and (6) and the Eleventh Cause of Action for Negligent Misrepresentation, fails to state a claim upon which relief can be granted. This motion is based upon this Notice, the Memorandum of Points and Authorities on file herein, all documents and evidence on file herein, and upon such other oral and documentary evidence as may be presented at the hearing of this matter.
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MOTION TO DISMISS (07 CV 2229)

Case 3:07-cv-02229-WQH-WMC

Document 5

Filed 12/27/2007

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Date: December 27, 2007

GIOVANNIELLO & MICHELS, LLP

By:

____________________________ Alexander F. Giovanniello Attorneys for DEFENDANT, RENESTER VILLA, LLC dba THE VALLEY INN n/k/a BLOSSOM VALLEY INN (erroneously sued and served as Blossom Valley Inn)

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MOTION TO DISMISS (07 CV 2229)

Case 3:07-cv-02229-WQH-WMC

Document 5

Filed 12/27/2007

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PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within entitled action; my business address is 1470 S. Valley Vista Drive, Suite 200, Diamond Bar, California 91765. On December 27, 2007, I served the foregoing document(s) described as DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES, FRCP 12(b)(6), by placing the true copies thereof enclosed in sealed envelopes address as follows: Robert A. Espinosa, Esq. LAW OFFICES OF ROBERT A. ESPINOSA 1041 State Street El Centro, CA 92243
Telephone: (760) 353-1410 Facsimile: (760) 353-1457

Attorneys for Plaintiffs (XX) BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles California in the ordinary course of business. BY PERSONAL SERVICE: I caused such envelope to be delivered by hand by DDS Attorney Service to a representative of the office of the above addressee. BY FEDERAL EXPRESS: the above addresses. I caused said envelope(s) to be sent by Federal Express to

BY TELECOPIER: I caused said document(s) to be transmitted by Telecopier to Facsimile Number (323) 291-1253. Executed on December 27, 2007, at Diamond Bar, California.

(XX) FEDERAL

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

_________________________________________ Eva Moreno-Cerda

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MOTION TO DISMISS (07 CV 2229)