Free Reply to Response to Motion - District Court of California - California

Case 3:07-cv-02218-LAB-RBB

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Filed 05/23/2008

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1 DECLUES, BURKETT & THOMPSON, LLP EXEMPT FROM FEES PER: GOVERNMENT CODE SECTION 6103 Attorneys at Law 2 JEFFREY P. THOMPSON, Esq. (State Bar No. 136713) JENNIFER K. BERNEKING, Esq. (State Bar No. 167112) 3 17011 Beach Blvd., Ste. 400 Huntington Beach, CA 92647-7455 4 Phone: (714) 843-9444 Fax: (714) 843-9452 5 e-mail address: [email protected] 6 7
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Attorneys for Defendants, CITY OF IMPERIAL (a public entity) and MIGUEL COLON (employee of a public entity) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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11 JOHN ESPINOZA, an individual,
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CASE NO.: 07CV2218 LAB (RBB)
Complaint Filed: 11120107 Judge Larry A. Burns Courtroom 9

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vs.

14 CITY OF IMPERIAL, a public entity; MIGUEL COLON, an individual; IRA DEFENDANT CITY OF IMPERIAL'S 15 GROSSMAN, an individual; and DOES REPLY TO PLAINTIFF'S 1 THROUGH 50, inclusive, OPPOSITION TO DEFENDANT 16 CITY'S OF IlVIPERIAL'S MOTION TO Defendants. STRIKE PORTIONS OF PLAINTIFF'S 17 FIRST AMENDED COMPLAINT 18 19 20 21 22 23
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Date: June 2, 2008 Time: 11:15 a.m. Crtrm.: 9 Trial Date: None Assigned TO PLAINTIFF JOHN ESPINOZA AND HIS ATTORNEYS OF RECORD: Defendant CITY OF IMPERIAL (a public entity) hereby replies to plaintiff JOHN

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CASE NO.: 07CV2218 LAB (REB)

Case 3:07-cv-02218-LAB-RBB

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1 ESPINOZA's Opposition to its Motion to Strike portions of First Amended Complaint.
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Dated: May 23, 2008
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DECLUES, BURKETT & THOMPSON, LLP

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BY: s/J. Thomn JEF Y P. THOMPSON, Esq. JENNIFER K. BERNEKING Esq.. Attorneys for Defendants, CITY OF IMPERIAL, (a public entity) and MIGUEL COLON (employee of a public entity)

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Case 3:07-cv-02218-LAB-RBB

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MEMORANDUM OF POINTS AND AUTHORITIES SUMMARY OF MOTION

Defendant CITY OF IMPERIAL (a public entity) ("CITY"), seeks to strike paragraphs 42,52,63,77,85,95, 114, 125, 133, 151, 156, and 162 in their entirety from plaintiff JOHN ESPINOZA's First Amended Complaint. Additionally, the CITY seeks to strike paragraph 7 of the prayer contained in plaintiffs First Amended Complaint. Specifically, defendant CITY seeks to strike all allegations referencing punitive damages against the CITY on the grounds that punitive damages are not recoverable against a public entity. See, California Government Code § 818.

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THE COURT MAY GRANT THE CITY'S MOTION TO

STRIKE IN ITS ENTIRETY AS PLAINTIFF HAS CONCEDED THE MERIT OF THE MOTION
Plaintiff, despite filing an Opposition to the CITY's Motion to Strike, admits the

14 CITY'S motion has merit. (Opp., p. 2, 11. 5-6). Nevertheless, plaintiff contends that 15 striking the paragraphs which form the basis of the motion would remove material 16 portions of the Complaint and unduly prejudice plaintiff. (Opp., p. 2, 11. 6-8). Plaintiff 17 does not, however, provide any support to his contention that he would be prejudiced if 18 the paragraphs are removed from the First Amended Complaint. 19 20 21 22
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Because plaintiff agrees with the merit of the Motion to Strike and has not provided any support for his contention that removal of the paragraphs which are the subject of this motion would prejudice him, the Court may properly grant this motion in its entirety.
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CASE NO.: 07CV2218 LAB (REB)

Case 3:07-cv-02218-LAB-RBB

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CONCLUSION

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As there is no substantive Opposition to defendant CITY OF IMPERIAL's Motion to Strike, defendant CITY requests that the Motion to Strike be granted in its entirety without leave to amend. Dated: May 23, 2008 DECLUES, BURKETT & THOMPSON, LLP

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BY: s/J. Thomn JEF Y P. THOMPSON, Esq. JENNIFER K. BERNEKING Esq._ Attorneys for Defendants, CITY OF IMPERIAL, (a public entity) and MIGUEL COLON (employee of a public entity)

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CASE NO.: 07CV2218 LAB (REB)

Case 3:07-cv-02218-LAB-RBB

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1 2 3 4 5 6 7 STATE OF CALIFORNIA COUNTY OF ORANGE

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PROOF OF SERVICE
(C.C.P. section 1013a(3))

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I am over t1J.e age of 18 and I am not a paI1Y to the within action. I am employed by DECLUES, BURKETT & THOMPSON, LLP, in the County of Orange, at 17011 Beach Blvd., Ste. 400, Huntington Beach, California, 92647-5995. On May 23t 2008, I served the attached: DEFENDANT CITY OF IMPERIAL'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT CITY'S OF IlVIPERIAL'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT On the interested parties in this action by: XXX Placing true copies thereof in sealed envelopes, addressed as described below. Vincent J. Tien Law Offices of Vincent J. Tien 17291 Irvine Blvd., Suite 150 Tustin, CA 92780 White, Oliver & Amundson
550 West C Street, Suite 950
San Diego, CA 92101
(619) 2J9-0300


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XXX 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 United States Postal Service on that same day, witn postage thereon fully prepaid at Huntington Beach, California, in the ordinary course ofbusiness. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing an affidavit. BY PERSONAL SERVICE: I caused such an envelope to be delivered by hand to the offices of the addressees. BY FEDERAL EXPRESS (Receipt/Airbill No.: )

BY FACSIMILE TRANSMISSION: From FAX NO. (714) 843-9452 to FAX No.: at or about Time, directed to Name. The facsimile machine I used complied wIth Rule 2003(3), and no error was reported by the machine. Pursuant to Rule 2005(1), I caused the machine to print a record of the transmission, a copy of which is attached to this declaration. XXX FEDERAL: I declare I am employed in the office of a member of the Bar of this Court at whose direction the service was made. I declare, under penalty of perjury under the laws of the State of California, that the above IS true and correct. Executed on May 23, 2008, at Hunti

CASE NO.: 07CV2218 LAB (RBB)