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.
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ELECTRONICALLY FILED
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN BERNARDINO
SAN BERNARDINO DISTRICT
Douglas M. Wade, SBN 183107 10/12/2023 3:20 pM
Jason
I. Hill, SBN
179630
Dusty M_ Knapp, SEN 349307 By: Paola Iniguez Solorio, DEPUTY
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
YESENIA ROBLES,
Case N0. CIVSBZ314929
11
Plaintiff, UNLIMITED JURISDICTION
12
Assigned for all purposes to the
13 VS-
Hon. Khymberli S. Apaloo
14
-
HIMNEL USA INCORPORATED, a DEPt- 525 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 19, 2023
DEfendantS‘
Hearing Time: 8:30am
19 Location: 247 West Third Street
Dept. 825
20 San Bernardino, CA
92415
21
Action Filed: July 5, 2023
22
Trial Date: Not Yet Assigned
23
24
Defendant Himnel USA Incorporated ("Himnel” 0r ”Defendant”) respectfully
25
submits the following reply to Plaintiff Yesenia Robles’ Opposition to Demurrer.
26
The Opposition raises three arguments, which are at best less than persuasive: (1)
27
counsel failed to meet and confer prior to bringing the instant demurrer (Opposition
28
1
DEF HIMNEL USA INCORPORATED’S REPLY TO OPPOSITION TO DEMURRER
HIMNEL USA INCORPORATED ADV. YESENIA ROBLES; CASE NO. CIV532314929
page 6, lines 2 to 18) so it should be denied in its entirety; (2) that extrinsic evidence in a
declaration justifies overruling a demurrer (Opposition pages 6 to 7, lines 19 t0 4); and
(3) Plaintiffs need not plead each element of the alleged Bane Act Violati0n(s) for it t0 be
sufficiently plead (Opposition, starting at page 7, line 20).
OOQONUI-RUJN
A11 three arguments fall short, and the grant of Himnel’s Demurrer without leave
t0 amend is proper.
I. COUNSEL MET AND CONFERRED PRIOR TO THE FILING OF THE
INSTANT DEMURRER.
KO When ruling on a demurrer, the Court must consider only the four corners 0f the
pleading subject t0 objection and should not consider extrinsic evidence. Mumoka v.
11 Budget Rent-A-Car, 160 Cal. App. 3d 107, 120. However, the Court must 100k t0 evidence
12 outside of the objectionable pleading in order to determine whether counsel ”met and
13 conferred” prior t0 the brining 0f a demurrer. This is what was done in the instant
14 matter. See Knapp Decl. filed In Support of Demurrer, HM 6 to 7, Exhibits B and C - letters
15 as between Nakase Wade and counsel for Plaintiff concerning deficiencies in the
16 Complaint subjecting it to demurrer.
17 Further, an insufficient ”meet and confer process” is not grounds t0 either
18 overrule 0r sustain a demurrer. See Olson v. Hornbrook Community Services Dist. 33 Cal.
19 App. 5th 502. See also Dumas v. L05 Angeles County Bd. 0f Supervisors 258 Cal. Rptr. 3d
20 659. Defendant’s demurrer should therefore not be overruled. The question before the
21 Court is whether, the Banes Act has been sufficiently pleaded.
22 II. DEFICIENCIES IN A DECLARATION IS NOT A BASIS TO OVERRULE A
23 DEMURRER
24 When ruling 0n a demurrer, the Court must consider only the pleading subject t0
25 objection, and not extrinsic evidence. (Muraoka v. Budget Rent-A-Car, 160 Cal. App. 3d
26 107, 120.)
27 Plaintiff alleges that Defendant’s counsel’s Declaration in Support 0f Demurrer is
28 a ”speaking demurrer” that moves for summary judgement, and therefore the demurrer
2
DEF HIMNEL USA INCORPORATED’S REPLY TO OPPOSITION TO DEMURRER
HIMNEL USA INCORPORATED ADV. YESENIA ROBLES; CASE NO. CIV532314929
Document Filed Date
October 12, 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 Douglas M. Wade, SBN 183107 10/12/2023 3:20 pM Jason I. Hill, SBN 179630 Dusty M_ Knapp, SEN 349307 By: Paola Iniguez Solorio, DEPUTY 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 YESENIA ROBLES, Case N0. CIVSBZ314929 11 Plaintiff, UNLIMITED JURISDICTION 12 Assigned for all purposes to the 13 VS- Hon. Khymberli S. Apaloo 14 - HIMNEL USA INCORPORATED, a DEPt- 525 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 19, 2023 DEfendantS‘ Hearing Time: 8:30am 19 Location: 247 West Third Street Dept. 825 20 San Bernardino, CA 92415 21 Action Filed: July 5, 2023 22 Trial Date: Not Yet Assigned 23 24 Defendant Himnel USA Incorporated ("Himnel” 0r ”Defendant”) respectfully 25 submits the following reply to Plaintiff Yesenia Robles’ Opposition to Demurrer. 26 The Opposition raises three arguments, which are at best less than persuasive: (1) 27 counsel failed to meet and confer prior to bringing the instant demurrer (Opposition 28 1 DEF HIMNEL USA INCORPORATED’S REPLY TO OPPOSITION TO DEMURRER HIMNEL USA INCORPORATED ADV. YESENIA ROBLES; CASE NO. CIV532314929 page 6, lines 2 to 18) so it should be denied in its entirety; (2) that extrinsic evidence in a declaration justifies overruling a demurrer (Opposition pages 6 to 7, lines 19 t0 4); and (3) Plaintiffs need not plead each element of the alleged Bane Act Violati0n(s) for it t0 be sufficiently plead (Opposition, starting at page 7, line 20). OOQONUI-RUJN A11 three arguments fall short, and the grant of Himnel’s Demurrer without leave t0 amend is proper. I. COUNSEL MET AND CONFERRED PRIOR TO THE FILING OF THE INSTANT DEMURRER. KO When ruling on a demurrer, the Court must consider only the four corners 0f the pleading subject t0 objection and should not consider extrinsic evidence. Mumoka v. 11 Budget Rent-A-Car, 160 Cal. App. 3d 107, 120. However, the Court must 100k t0 evidence 12 outside of the objectionable pleading in order to determine whether counsel ”met and 13 conferred” prior t0 the brining 0f a demurrer. This is what was done in the instant 14 matter. See Knapp Decl. filed In Support of Demurrer, HM 6 to 7, Exhibits B and C - letters 15 as between Nakase Wade and counsel for Plaintiff concerning deficiencies in the 16 Complaint subjecting it to demurrer. 17 Further, an insufficient ”meet and confer process” is not grounds t0 either 18 overrule 0r sustain a demurrer. See Olson v. Hornbrook Community Services Dist. 33 Cal. 19 App. 5th 502. See also Dumas v. L05 Angeles County Bd. 0f Supervisors 258 Cal. Rptr. 3d 20 659. Defendant’s demurrer should therefore not be overruled. The question before the 21 Court is whether, the Banes Act has been sufficiently pleaded. 22 II. DEFICIENCIES IN A DECLARATION IS NOT A BASIS TO OVERRULE A 23 DEMURRER 24 When ruling 0n a demurrer, the Court must consider only the pleading subject t0 25 objection, and not extrinsic evidence. (Muraoka v. Budget Rent-A-Car, 160 Cal. App. 3d 26 107, 120.) 27 Plaintiff alleges that Defendant’s counsel’s Declaration in Support 0f Demurrer is 28 a ”speaking demurrer” that moves for summary judgement, and therefore the demurrer 2 DEF HIMNEL USA INCORPORATED’S REPLY TO OPPOSITION TO DEMURRER HIMNEL USA INCORPORATED ADV. YESENIA ROBLES; CASE NO. CIV532314929