On June 21, 2023 a
Motion-Secondary
was filed
involving a dispute between
Frias, Norma,
and
Does 1-20,
Himnel Usa Incorporated,
for Wrongful Termination Unlimited
in the District Court of San Bernardino County.
Preview
ELECTRONICALLY FILED
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN BERNARDINO
SAN BERNARDINO DISTRICT
10/3/2023 3'14 PM
Douglas M. Wade, SBN 183107
I. Jason Hill, SBN 179630 By: Paola Iniguez Solorio, DEPUTY
Dusty M. Knapp, SBN 349307
CALIFORNIA BUSINESS LAWYER 8: CORPORATE LAWYER, INC.
500 N. State College Blvd, Suite 1100
Orange, California 92868
Telephone: (800) 484-4610
Fax: (714) 400-9033
OOQONUI-RUJN
Email: doug@ca—businesslawyer.com; jhill@ca-businesslawyer.com
dknapp@ca-businesslawyer.com
Attorneys for: Defendant Himnel USA Incorporated
SUPERIOR COURT OF THE STATE OF CALIFORNIA
KO
FOR THE COUNTY OF SAN BERNARDINO
NORMA FRIAS,
Case N0. CIVSBZ314042
11
Plaintiff, UNLIMITED JURISDICTION
12
Assigned for all purposes to the
13 VS-
Hon. Michael A. Sachs
14
-
HIMNEL USA INCORPORATED, a DEPt- 528 SBJC
15 California Corporation, HIMNEL USA
INCORPORATED DBA ST. MARY’S DEFENDANT HIMNEL USA
16 MONTESSORI SCHOOL, a California INCORPORATED’S REPLY TO
Corporation, and DOES 1-20, Inclusive, vvvvvvvvvvvvvvvvvvvvvvvv
OPPOSITION TO DEMURRER
17
18
Hearing Date: October 10, 2023
DEfendantS‘
Hearing Time: 8:30am
19 Location: 247 West Third Street
Dept. 828
20 San Bernardino, CA
92415
21
22
Action Filed: June 21, 2023
23 Trial Date: Not Yet Assigned
24
25 Defendant Himnel USA Incorporated ("Himnel” 0r ”Defendant”) respectfully
26 submits the following reply to Plaintiff Veronica Hernandez’s Opposition to Demurrer.
27 The Opposition raises four arguments, which are at best less than persuasive: (1)
28 counsel failed t0 meet and confer prior to bringing the instant demurrer (Opposition,
1
HIMNEL USA INCORPORATED’S REPLY TO OPPOSITION TO DEMURRER
DEF.
HIMNEL USA INCORPORATED ADV. NORMA FRIAS; CASE NO. CIVSBZ314042
page 5, lines 24 to 25) so it should be denied in its entirety; (2) extrinsic evidence in a
declaration justifies overruling a demurrer (Opposition, page 6, lines 21 to 22); (3)
Plaintiff need not plead each element of the alleged Bane Act Violation(s) for it t0 be
sufficiently plead (Opposition, starting at page 8, line 11); and (4) that Plaintiff need not
OOQONUI-RUJN
plead each element of negligence when alleging negligent infliction of emotional distress
(Opposition, page 13, line 9.)
A11 four arguments fall short, and the grant of Himnel’s Demurrer is proper.
I. COUNSEL MET AND CONFERRED PRIOR TO THE FILING OF THE
KO INSTANT DEMURRER.
When ruling 0n a demurrer, the Court must consider only the four corners 0f the
11 pleading subject t0 objection and should not consider extrinsic evidence. (Muraoka v.
12 Budget Rent-A-Car, 160 Cal. App. 3d 107, 120.) However, the Court must 100k t0 evidence
13 outside 0f the objectionable pleading in order to determine whether counsel ”met and
14 conferred” prior to the bringing of a demurrer. This is what was done in the instant
15 matter. (See Knapp Decl. filed In Support 0f Demurrer, ‘fl‘fl 6 to 7, Exhibits B, C and D —
16 letters and emails as between Nakase Wade and counsel for Plaintiff concerning
17 deficiencies in the Complaint subjecting it t0 demurrer.)
18 Further, an insufficient ”meet and confer process” is not grounds t0 either
19 overrule 0r sustain a demurrer. (See Olson v. Hornbrook Community Services Dist. 33 Cal.
20 App. 5th 502. See also Dumas v. L05 Angeles County Bd. 0f Supervisors 258 Cal. Rptr. 3d
21 659.) Defendant’s demurrer should therefore not be overruled. The question before the
22 Court is Whether, the Bane Act has been sufficiently pleaded.
23 II. DEFICIENCIES IN A DECLARATION IS NOT A BASIS TO OVERRULE A
24 DEMURRER
25 When ruling 0n a demurrer, the Court must consider only the pleading subject t0
26 objection, and not extrinsic evidence. (Mumoka v. Budget Rent-A-Car, 160 Cal. App. 3d
27 107, 120.)
28 Plaintiff alleges that Defendant’s counsel’s Declaration in Support of Demurrer is
2
HIMNEL USA INCORPORATED’S REPLY TO OPPOSITION TO DEMURRER
DEF.
HIMNEL USA INCORPORATED ADV. NORMA FRIAS; CASE NO. CIVSBZ314042
Document Filed Date
October 03, 2023
Case Filing Date
June 21, 2023
Category
Wrongful Termination Unlimited
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ELECTRONICALLY FILED SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN BERNARDINO SAN BERNARDINO DISTRICT 10/3/2023 3'14 PM Douglas M. Wade, SBN 183107 I. Jason Hill, SBN 179630 By: Paola Iniguez Solorio, DEPUTY Dusty M. Knapp, SBN 349307 CALIFORNIA BUSINESS LAWYER 8: CORPORATE LAWYER, INC. 500 N. State College Blvd, Suite 1100 Orange, California 92868 Telephone: (800) 484-4610 Fax: (714) 400-9033 OOQONUI-RUJN Email: doug@ca—businesslawyer.com; jhill@ca-businesslawyer.com dknapp@ca-businesslawyer.com Attorneys for: Defendant Himnel USA Incorporated SUPERIOR COURT OF THE STATE OF CALIFORNIA KO FOR THE COUNTY OF SAN BERNARDINO NORMA FRIAS, Case N0. CIVSBZ314042 11 Plaintiff, UNLIMITED JURISDICTION 12 Assigned for all purposes to the 13 VS- Hon. Michael A. Sachs 14 - HIMNEL USA INCORPORATED, a DEPt- 528 SBJC 15 California Corporation, HIMNEL USA INCORPORATED DBA ST. MARY’S DEFENDANT HIMNEL USA 16 MONTESSORI SCHOOL, a California INCORPORATED’S REPLY TO Corporation, and DOES 1-20, Inclusive, vvvvvvvvvvvvvvvvvvvvvvvv OPPOSITION TO DEMURRER 17 18 Hearing Date: October 10, 2023 DEfendantS‘ Hearing Time: 8:30am 19 Location: 247 West Third Street Dept. 828 20 San Bernardino, CA 92415 21 22 Action Filed: June 21, 2023 23 Trial Date: Not Yet Assigned 24 25 Defendant Himnel USA Incorporated ("Himnel” 0r ”Defendant”) respectfully 26 submits the following reply to Plaintiff Veronica Hernandez’s Opposition to Demurrer. 27 The Opposition raises four arguments, which are at best less than persuasive: (1) 28 counsel failed t0 meet and confer prior to bringing the instant demurrer (Opposition, 1 HIMNEL USA INCORPORATED’S REPLY TO OPPOSITION TO DEMURRER DEF. HIMNEL USA INCORPORATED ADV. NORMA FRIAS; CASE NO. CIVSBZ314042 page 5, lines 24 to 25) so it should be denied in its entirety; (2) extrinsic evidence in a declaration justifies overruling a demurrer (Opposition, page 6, lines 21 to 22); (3) Plaintiff need not plead each element of the alleged Bane Act Violation(s) for it t0 be sufficiently plead (Opposition, starting at page 8, line 11); and (4) that Plaintiff need not OOQONUI-RUJN plead each element of negligence when alleging negligent infliction of emotional distress (Opposition, page 13, line 9.) A11 four arguments fall short, and the grant of Himnel’s Demurrer is proper. I. COUNSEL MET AND CONFERRED PRIOR TO THE FILING OF THE KO INSTANT DEMURRER. When ruling 0n a demurrer, the Court must consider only the four corners 0f the 11 pleading subject t0 objection and should not consider extrinsic evidence. (Muraoka v. 12 Budget Rent-A-Car, 160 Cal. App. 3d 107, 120.) However, the Court must 100k t0 evidence 13 outside 0f the objectionable pleading in order to determine whether counsel ”met and 14 conferred” prior to the bringing of a demurrer. This is what was done in the instant 15 matter. (See Knapp Decl. filed In Support 0f Demurrer, ‘fl‘fl 6 to 7, Exhibits B, C and D — 16 letters and emails as between Nakase Wade and counsel for Plaintiff concerning 17 deficiencies in the Complaint subjecting it t0 demurrer.) 18 Further, an insufficient ”meet and confer process” is not grounds t0 either 19 overrule 0r sustain a demurrer. (See Olson v. Hornbrook Community Services Dist. 33 Cal. 20 App. 5th 502. See also Dumas v. L05 Angeles County Bd. 0f Supervisors 258 Cal. Rptr. 3d 21 659.) Defendant’s demurrer should therefore not be overruled. The question before the 22 Court is Whether, the Bane Act has been sufficiently pleaded. 23 II. DEFICIENCIES IN A DECLARATION IS NOT A BASIS TO OVERRULE A 24 DEMURRER 25 When ruling 0n a demurrer, the Court must consider only the pleading subject t0 26 objection, and not extrinsic evidence. (Mumoka v. Budget Rent-A-Car, 160 Cal. App. 3d 27 107, 120.) 28 Plaintiff alleges that Defendant’s counsel’s Declaration in Support of Demurrer is 2 HIMNEL USA INCORPORATED’S REPLY TO OPPOSITION TO DEMURRER DEF. HIMNEL USA INCORPORATED ADV. NORMA FRIAS; CASE NO. CIVSBZ314042