Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-02174-H-BLM

Document 48

Filed 02/08/2008

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EDMUND G. BROWN JR. Attorney General of the State of California W. DEAN FREEMAN FELIX E. LEATHERWOOD Supervising Deputy Attorneys General RONALD N. ITO, State Bar No. 071322 DIANE SPENCER SHAW, State Bar No. 073970 LISA W. CHAO, State Bar No. 198536 Deputy Attorneys General 300 South Spring Street, Room 1702 Los Angeles, California 90013 Telephone: (213) 897-2477 Fax: (213) 897-5775 Attorneys for Defendant Caroline Beteta UNITED STATES DISTRICT COURT

10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 Plaintiffs, 15 v. 16 17 18 19 20 21 22 23 Defendants. 24 25 26 27 28
NOTICE OF MOTION AND MOTION OF DEFENDANT CAROLINE BETETA TO DISMISS COMPLAINT FOR INJUNCTION, MONETARY DAMAGES AND DECLARATORY RELIEF

MICHAEL SHAMES; GARY GRAMKOW, on behalf of themselves and on behalf of all persons similarly situated,

CASE NO. 07 CV 2174 H BLM NOTICE OF MOTION AND MOTION OF DEFENDANT CAROLINE BETETA TO DISMISS COMPLAINT FOR INJUNCTION, MONETARY DAMAGES AND DECLARATORY RELIEF Hearing Date: Time: Place: Judge: April 1, 2008 10:30 a.m. Courtroom 13 Hon. Marilyn Huff

THE HERTZ CORPORATION, Delaware corporation; DOLLAR THRIFTY AUTOMOTIVE GROUP, INC., a Delaware corporation; AVIS BUDGET GROUP, INC., a Delaware corporation; VANGUARD CAR RENTAL USA, INC., an Oklahoma corporation; ENTERPRISE RENT-A-CAR COMPANY, a Missouri corporation; FOX RENT A CAR, INC., a California corporation; COAST LEASING CORP., a Texas corporation, THE CALIFORNIA TRAVEL AND TOURISM COMMISSION and CAROLINE BETETA,

Case 3:07-cv-02174-H-BLM

Document 48

Filed 02/08/2008

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TO PLAINTIFFS, ALL OTHER INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 1, 2008 at 10:30 a.m., or as soon as the matter may be heard, a hearing will be held in Courtroom 13 of the above-entitled court, located at 940 Front Street, San Diego, California, 92101, whereby Defendant Caroline Beteta will and hereby does move the Court for dismissal of the Complaint for Injunction, Monetary Damages and Declaratory Relief. The Motion is made pursuant to Federal Rules of Civil Procedure 12(b)(6) on the ground that the Complaint, and each Cause of Action, fails to state a claim upon which relief may be granted. Plaintiffs have not sufficiently alleged: any violation upon which relief can be awarded against defendant Caroline Beteta under Section 1 of the Sherman Act by defendant Caroline Beteta, applying the standards set forth in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) in the First Cause of Action; or any violation of, or grounds for monetary or injunctive relief from defendant Caroline Beteta under, the California's Unfair Competition Act (Cal. Gov't Code § 17200, et seq.) in the Second Cause of Action; or any allegations of violations of the BagleyKeene Open Meeting Act by defendant Caroline Beteta. As to the Second Cause of Action any monetary award against defendant Caroline Beteta under the Unfair Competition Act is barred by the Eleventh Amendment and failure to allege compliance with the California Tort Claims Act, and, as a California state employee, under California law defendant Caroline Beteta is immune from suit for violation of the Unfair Competition Act. As to the Third Cause of Action, Plaintiffs have not asserted any allegations against defendant Caroline Beteta and she is not a proper party. The Second Cause of Action and Third Cause of Action also should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) on the ground that the Court should decline to exercise supplemental jurisdiction over these causes of action that are based solely on state law. // // // // -2NOTICE OF MOTION AND MOTION OF DEFENDANT CAROLINE BETETA TO DISMISS COMPLAINT FOR INJUNCTION, MONETARY DAMAGES AND DECLARATORY RELIEF

Case 3:07-cv-02174-H-BLM

Document 48

Filed 02/08/2008

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This Motion to Dismiss is based on this Notice, the Memorandum of Points and Authorities in support thereof, all pleadings and papers on file in this action, and upon such other and further argument as may be made at the time of hearing upon the Motion.

Dated: February 8, 2008

EDMUND G. BROWN JR., Attorney General of the State of California W. DEAN FREEMAN FELIX E. LEATHERWOOD Supervising Deputy Attorneys General RONALD N. ITO DIANE SPENCER SHAW LISA W. CHAO Deputy Attorneys General

s/Ronald N. Ito Attorneys for Defendant Caroline Beteta E-mail: [email protected]

-3NOTICE OF MOTION AND MOTION OF DEFENDANT CAROLINE BETETA TO DISMISS COMPLAINT FOR INJUNCTION, MONETARY DAMAGES AND DECLARATORY RELIEF