Case Number: SC120488    Hearing Date: September 16, 2014    Dept: P

TENTATIVE RULING – DEPT. P

SEPT. 16, 2014 CALENDAR No: 3

SC120488 — HAMADA v. LIVINGHOMES, et al.

MOTION TO AMEND TO ADD A CAUSE OF ACTION FOR PRODUCT LIABILITY

In their Reply, plaintiffs state that they did not receive any opposition to their motion. The proof of service on the Opposition, which was filed on August 11, states that it was served on counsel for plaintiff that date by both overnight delivery and e-mail.

Even had no opposition been filed, the points rased therein — which are apparent and concerned the Court as it read the motion– and which set out several failures by moving party to comply with applicable Rules of Court (e.g., Rules 3.1324(a)(3) and (b)(1-4)), make it impossible to grant the motion.

The Court notes that defendants Living Homes and Steve Glenn also filed an Opposition (also on August 11), but the motion itself is not directed to them. Perhaps the key reason these parties filed this opposition is to bring to the Court’s attention that they have a demurrer pending to the present iteration of the complaint, which is set to be heard on November 13, 2014.

The pending demurrer presents an interesting wrinkle; the Court agrees that it is better to await the outcome of that hearing — or an agreement of the parties that resolves the issues now “on the table” globally, than to grant this motion to amend–which is defective for the reasons stated herein, and perhaps also as suggested in the opposition papers.

The motion is denied without prejudice.

PLAINTIFFS’ MOTION TO COMPEL ARBITRATION OF KEB ENTERPRISES, LLC IN LIEU OF DEFENDANT FILING A RESPONSIVE PLEADING

The motion suffers from a number of defects. First, as opposing party points out, there is no factual support for the motion. Plaintiffs have not asked the Court to take judicial notice of the order in the Ironwood action, and merely attaching that order which plaintiffs claim controls the outcome here is not sufficient by itself. The Court is flattered that counsel considers the Court to have instant recall of all facts and circumstances surrounding that other action, but with over 500 active cases from time to time, and hundreds of motion hearings each year, it is not possible. Moreover the motion is deficient factually.

It may be that discovery will adduce facts to support the claims now being made, but they have not yet been established.

Second, there are no actual signatures on either the motion or the accompanying declaration. What is there is not a signature. All such documents must bear signatures of counsel (CCP section 128,7) and declarant (CCP section 2015.5), respectively.

The motion is denied without prejudice.

The parties will want to re-visit whether federal or state law applies to this matter — and provide a proper factual basis for the Court to make this legal conclusion if a new motion is filed.

PLAINTIFFS’ MOTION TO COMPEL JUDICIAL REFERENCE AS TO DEFENDANTS LIVING HOMES AND STEVE GLENN

The opposition presents an interesting juxtaposition of circumstances.

The motion is denied without prejudice.

The parties are to meet and confer — on this and all topics. These three motions indicate that the parties need to engage in good faith discussions with the best interests of their clients at the forefront and with the goal of agreeing on a means of addressing all of these “procedural” issues so that all clients are best served by a logical and expeditious path to resolution of the various concerns.

In those discussions, the parties should also consider the wisdom and utility (and cost) of having parallel arbitrations and judicial references in process.

NOTICE

_____________ shall give notice of today’s rulings and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.