Judge Teresa A. Beaudet, Case Number: 24STCV07715, Date: 2024-09-23 Tentative Ruling

SHILOH PARKER, Plaintiff, vs. HALEY FREIBERGER, et al., Defendants.	Case No.:	24STCV07715
	Hearing Date:	September 23, 2024
	Hearing Time:	10:00 a.m.
	[TENTATIVE] ORDER RE: SPECIALLY APPEARING DEFENDANTS’ AMENDED MOTION TO QUASH SUMMONS

Plaintiff Shiloh Parker (“Plaintiff”) filed this action on March 27, 2024 against Defendants Haley Freiberger and Kyle Freiberger. The Complaint alleges causes of action for

(1) “fraud by intentional misrepresentation,” (2) “fraud by negligent misrepresentation,”

(3) “breach of good faith and fair dealing covenant,” (4) violation of Business and Professions Code section 17200, et seq., and (5) breach of oral contract.[1]

“Specially Appearing Defendants” Haley Freiberger and Kyle Freiberger (jointly, the “Freibergers”) now move for an order quashing the service of the Summons and Complaint. Plaintiff opposes.

As an initial matter, in the reply, the Freibergers assert that Plaintiff’s opposition is procedurally defective in multiple ways.

First, the Freibergers note that the opposition was untimely filed and served. Pursuant to Code of Civil Procedure section 1005, subdivision (b), “[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” In addition, “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days…” (Code Civ. Proc., § 1010.6, subd. (a)(3)(B).)

Here, Plaintiff’s opposition to the instant motion was filed on September 12, 2024. The proof of service filed with Plaintiff’s opposition indicates that the opposition was served by facsimile, e-mail, and mail on September 12, 2024. However, the hearing on the instant motion was set for September 23, 2024.[2] Nine court days prior to September 23, 2024 is September 10, 2024. Two court days prior to September 10, 2024 is September 6, 2024. As set forth above, Plaintiff’s opposition was served by, inter alia, electronic transmission after September 6, 2024, on September 12, 2024. The Freibergers note that they were accordingly “left…with two court days to respond to [Plaintiff’s] lengthy Opposition.” (Reply at p. 3:10-11.) The Court notes that five court days prior to the September 23, 2024 hearing is September 16, 2024 (the deadline to file a reply under Code Civ. Proc., § 1005, subd. (b)).

Moreover, the Freibergers note that Plaintiff’s opposition well exceeds the applicable page limit. Pursuant to California Rules of Court, rule 3.1113, subdivision (d), “[e]xcept in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. No reply or closing memorandum may exceed 10 pages. The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.” (Emphasis added.) Here, Plaintiff’s memorandum of points and authorities in support of the opposition consists of 24 pages. The Freibergers assert that this is “unfair to the Specially Appearing Defendants who are left with only ten (10) pages on Reply to respond to Plaintiff’s improperly lengthy Opposition.” (Reply at p. 3:16-18.) Moreover, Plaintiff does not appear to cite any Court order authorizing her to include additional pages in her opposition.

The Freibergers also assert that “in her Opposition, Plaintiff includes the…Motion to Strike that she withdrew and…that was vacated and asks the Court to grant it. See Opposition, pgs. 10-20, 30. Plaintiff’s inclusion of the previously vacated Motion to Strike is improper and in direct contradiction to the Court’s orders at the August 12, 2024, hearing.” (Reply at p. 3:22-25.) However, the Court’s August 12, 2024 minute order in this matter provides, inter alia, that “Plaintiff withdraws the Motion to Strike and will address the issues raised therein via the opposition to the Motion to Quash.”

In any event, in light of the untimeliness of Plaintiff’s opposition and the fact that the opposition well exceeds the page limit set forth in California Rules of Court, rule 3.1113, subdivision (d), the Court continues the hearing on the instant motion.

In light of the foregoing issues, the Court continues the hearing on the Freibergers’ motion to quash to ____________, 2024, at 10:00 a.m. in Dept. 50.

On or before ____________, 2024, Plaintiff is to file amended opposition papers that comply with the page number requirement set forth in California Rules of Court, rule 3.1113, subdivision (d). Courtesy copies shall be delivered to Dept. 50. No new evidence or new argument is to be submitted in Plaintiff’s amended opposition papers.

On or before ____________, 2024, the Freibergers may file a new reply brief that will supersede the previously filed reply. Courtesy copies of any new reply brief shall be delivered to Dept. 50.

[1]The Court notes that the caption page of the Complaint appears to reference a cause of action for “disgorgement,” but the remainder of the Complaint does not appear to contain any such cause of action.

[2]The Court’s August 12, 2024 minute order in this matter provides, inter alia, that “the hearings on the motion to quash and the case management conference are vacates [sic] and set on September 23, 2024 at 10:00a.m. in Department 50.”

Superior Court of California

County of Los Angeles

Department 50