Free Proposed Order - District Court of California - California

Case 3:08-cv-02903-SC

Document 7

Filed 06/16/2008

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DARRYL J. HOROWITT #100898 DANIA M. ALVARENGA #244486 COLEMAN & HOROWITT, LLP Attorneys at Law 499 West Shaw, Suite 116 Fresno, California 93704 Telephone: (559) 248-4820 Facsimile: (559) 248-4830 Attorneys for Defendant, GULF STREAM COACH, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

AQUAIR VENTURES, LLC, ANTONIA CITRINO, and JOSEPH GEIGER, Plaintiffs,

NO.

C 08-02903 SC

13 v. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GULF STREAM COACH, INC., and DOES 1 through 30, Defendants.

[PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO DISMISS Date: Time: Courtroom: August 1, 2008 10:00 a.m. 1

The motion of Defendant, GULF STREAM COACH, INC., to dismiss pursuant to FRCP Rule 12(b)(6) came on regularly for hearing before the Honorable Samuel Conti, judge presiding. Plaintiffs, AQUAIR VENTURES, LLC, ANTONIA CITRINO, and JOSEPH GEIGER, appeared through Donald Seth of the Law Offices of Donald Seth. Defendant, GULF STREAM COACH, INC., appeared through Dania M. Alvarenga of Coleman & Horowitt, LLP. The court, having read the papers and pleadings on file and considering the oral argument of counsel, finds as follows: 1. The contract attached to Plaintiffs; complaint identifies the purchaser of the Tour

Master recreational vehicle as AQUAIR VENTURES, LLC, a Montana limited liability company; neither ANTONIA CITRINO nor JOSEPH GEIGER were purchasers of the RV;
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[PROPOSED] ORDER GRANTING MOTION TO DISMISS

Case 3:08-cv-02903-SC

Document 7

Filed 06/16/2008

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Aquair Ventures LLC, et al. v. Gulf Stream Coach, Inc., et al. Case No. C 08-02903 SC

2.

The Manufacturer's Statement of Origin (Exhibit "B" to Defendant's Request To

Take Judicial Notice) and the brochure for the RV show that the weight of the RV was in excess of 10,000 pounds; 3. Because AQUAIR VENTURES, LLC was the purchaser of the RV, which

weighed in excess of 10,000 pounds, AQUAIR is not a consumer as that term is defined in the Song-Beverly Consumer Warranty Act, California Civil Code § 1791, and thus may not maintain an action based on the Act; and, 4. Because neither ANTONIA CITRINO nor JOSEPH GEIGER were purchasers of

the RV identified in Plaintiffs' complaint, they are not real parties in interest in this action and thus may not maintain an action against Defendant. The above findings of fact having been made and good cause appearing therefor, IT IS HEREBY ORDERED as follows: 1. GRANTED; 2. Defendant's Motion to Strike the first claim for relief for violation of SongDefendant's Request to Take Judicial Notice of Documents and Facts is hereby

Beverly Consumer Warranty Act is hereby GRANTED without leave to amend; 3. Defendant's Motion to Strike the entire action as to Plaintiffs, ANTONIA

CITRINO and JOSEPH GEIGER, is hereby GRANTED in its entirety without leave to amend.

Dated: ____________________ ____________________________________ HON. SAMUEL CONTI SENIOR JUDGE, UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA

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MEMO OF POINTS & AUTHORITIES IN SUPPORT