This case was last updated from Los Angeles County Superior Courts on 09/13/2021 at 05:04:09 (UTC).

JOHEL A. CLIMACO VALENCIA VS FRANCO TRANSPORT, LLC, ET AL.

Case Summary

On 06/09/2020 JOHEL A CLIMACO VALENCIA filed a Labor - Other Labor lawsuit against FRANCO TRANSPORT, LLC. This case was filed in Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California. The Judge overseeing this case is MARK C. KIM. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0279

  • Filing Date:

    06/09/2020

  • Case Status:

    Other

  • Case Type:

    Labor - Other Labor

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MARK C. KIM

 

Party Details

Plaintiff

CLIMACO VALENCIA JOHEL A. AKA JOHEL A. CLIMACO

Defendants

FIASCO ENTERPRISES INC. DBA FIASCO ENTERPRISES INC. DBA ENERGY TRANSPORT LOGISTICS

ROHASEK MATTHEW

FRANCO PABLO

FRANCO TRANSPORT LLC

SHERIDAN WILLIAM

VEGA JACOB J.

ROHASEK KIM

Attorney/Law Firm Details

Plaintiff Attorney

JENKINS M. ANTHONY

Defendant Attorneys

KAVALLER MILES LAWRENCE

KAVALLER MILES L.

FISHER TIMOTHY

MCNATT JR. CHRISTOPHER C.

 

Court Documents

Request for Dismissal

9/9/2021: Request for Dismissal

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE (CELINDA ALIGADA, CSR: 13724)

7/9/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE (CELINDA ALIGADA, CSR: 13724)

Motion for Judgment on the Pleadings

7/16/2021: Motion for Judgment on the Pleadings

Substitution of Attorney

7/27/2021: Substitution of Attorney

Substitution of Attorney

7/27/2021: Substitution of Attorney

Substitution of Attorney

7/27/2021: Substitution of Attorney

Substitution of Attorney

7/27/2021: Substitution of Attorney

Substitution of Attorney

7/27/2021: Substitution of Attorney

Request for Dismissal

8/11/2021: Request for Dismissal

Ex Parte Application - EX PARTE APPLICATION EX PARTE FOR TRIAL CONTINUANCE; DECLARATION OF M. ANTHONY JENKINS

7/8/2021: Ex Parte Application - EX PARTE APPLICATION EX PARTE FOR TRIAL CONTINUANCE; DECLARATION OF M. ANTHONY JENKINS

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR TRIAL CONTINUANCE)

7/9/2021: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR TRIAL CONTINUANCE)

Notice of Ruling

7/9/2021: Notice of Ruling

Answer

6/23/2021: Answer

Motion to Quash Service of Summons

6/23/2021: Motion to Quash Service of Summons

Motion to Quash Service of Summons

6/23/2021: Motion to Quash Service of Summons

Answer

6/23/2021: Answer

Proof of Service by Mail

6/24/2021: Proof of Service by Mail

Notice - NOTICE ERRATA TO AMENDMENT TO COMPLAINT

5/14/2021: Notice - NOTICE ERRATA TO AMENDMENT TO COMPLAINT

71 More Documents Available

 

Docket Entries

  • 09/09/2021
  • DocketRequest for Dismissal; Filed by Johel A. Climaco Valencia (Plaintiff)

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  • 08/27/2021
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Non-Jury Trial ((phase two)) - Not Held - Continued - Party's Motion

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  • 08/16/2021
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Final Status Conference ((phase two)) - Not Held - Vacated by Court

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  • 08/11/2021
  • DocketRequest for Dismissal; Filed by Johel A. Climaco Valencia (Plaintiff)

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  • 07/27/2021
  • DocketSubstitution of Attorney; Filed by PABLO FRANCO (Defendant)

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  • 07/27/2021
  • DocketSubstitution of Attorney; Filed by FIASCO ENTERPRISES, INC. (Defendant)

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  • 07/27/2021
  • DocketSubstitution of Attorney; Filed by Kim Rohasek (Defendant)

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  • 07/27/2021
  • DocketSubstitution of Attorney; Filed by FRANCO TRANSPORT, LLC (Defendant)

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  • 07/27/2021
  • DocketSubstitution of Attorney; Filed by WILLIAM SHERIDAN (Defendant)

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  • 07/16/2021
  • Docketat 08:30 AM in Department S27, Mark C. Kim, Presiding; Non-Jury Trial ((phase one)) - Not Held - Continued - Party's Motion

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83 More Docket Entries
  • 08/05/2020
  • DocketProof of Personal Service; Filed by Johel A. Climaco Valencia (Plaintiff)

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  • 08/05/2020
  • DocketProof of Personal Service; Filed by Johel A. Climaco Valencia (Plaintiff)

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  • 08/05/2020
  • DocketProof of Personal Service; Filed by Johel A. Climaco Valencia (Plaintiff)

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  • 07/15/2020
  • DocketAnswer; Filed by FIASCO ENTERPRISES, INC. (Defendant); WILLIAM SHERIDAN (Defendant); MATTHEW ROHASEK (Defendant)

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  • 06/10/2020
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 06/10/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/09/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 06/09/2020
  • DocketCivil Case Cover Sheet; Filed by Johel A. Climaco Valencia (Plaintiff)

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  • 06/09/2020
  • DocketSummons (on Complaint); Filed by Johel A. Climaco Valencia (Plaintiff)

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  • 06/09/2020
  • DocketComplaint; Filed by Johel A. Climaco Valencia (Plaintiff)

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Tentative Rulings

Case Number: 20LBCV00279    Hearing Date: April 22, 2021    Dept: S27

  1. Background Facts

    Plaintiff, Johel A. Climaco Valencia filed this action against Defendants, Franco Transport, LLC, Fiasco Enterprises, Inc., Fiasco Enterprises, Inc. dba Energy Transport Logistics, Pablo Franco, William Sheridan, Matthew Rohasek, and Jacob J. Vega for various wage and hour violations. Plaintiff filed his complaint on 6/09/20. On 10/02/20, Plaintiff filed a First Amended Complaint. The FAC was similar to the original complaint, but was pled as a PAGA representative complaint and not just an individual complaint.

    On 11/25/20, Defendant, Pablo Franco filed a demurrer to the FAC. On 12/18/20, the parties stipulated that Plaintiff would be permitted to file a Second Amended Complaint, but the 11/25/20 demurrer to the FAC would be deemed a demurrer to the SAC.

  2. Demurrer

  1. History

    The Court originally heard this demurrer on 3/23/21. At the conclusion of the hearing, the Court continued the hearing on the demurrer to request briefing on two issues. First, the Court asked the parties to brief whether or not Plaintiff engages in activity related to interstate commerce, such that federal preemption would apply. Second, the Court asked the parties to brief whether or not California meal and rest break requirements are applicable to short-haul truck drivers.

  2. Issue Remaining

    The parties resolved the first issue, and agree that Plaintiff was engaged in activity that implicates interstate commerce at all times relevant to the complaint, such that federal preemption is at issue. Thus, the sole issue for resolution at this time is whether California’s laws regarding meal and rest breaks are preempted by the FMCSA, codified at 49 CFR §395.1, et seq.

  3. FMCSA Preemption Decision

    Defendants argue 49 CFR §395.1(e) and 395.3 make clear that short-haul drivers are prohibited from driving if impaired by illness or fatigue or other condition making driving unsafe, and these are the only provisions governing meal and rest breaks for short-haul drivers. Defendants rely on what they call “the FMCSA Preemption Decision” in both their supplemental brief and the Declaration of Counsel in support of the supplemental brief. Defendants never define “the FMCSA Preemption Decision,” but it appears Defendants are referencing the Department of Transportation, Federal Motor Carrier Safety Administration, Docked No. FMCSA 2018-0304 Order of which Defendants sought judicial notice with their original moving papers. Defendants indicate, in their original points and authorities, that a copy of the Order is attached. Defendants failed, however, to provide a copy of the Order with their original demurrer, with their RJN, or with their supplemental brief. The Court has therefore only considered the portions of the Order directly quoted in the parties’ briefs.

  4. 49 CFR §§395.1 and 395.3

    The parties disagree concerning whether 49 CFR §§395.1 and 395.3, on their face, show an intention to preempt California’s wage and hour laws relating to short-haul truck drivers. §395.1 provides, in pertinent part:

    (a) General.

    (1) The rules in this part apply to all motor carriers and drivers, except as provided in paragraphs (b) through (x) of this section.

    (e) Short-haul operations—

    (2) Operators of property-carrying commercial motor vehicles not requiring a commercial driver's license. Except as provided in this paragraph, a driver is exempt from the requirements of §§395.3(a)(2), 395.8, and 395.11 and ineligible to use the provisions of §395.1(e)(1), (g), and (o) if:

    (i) The driver operates a property-carrying commercial motor vehicle for which a commercial driver's license is not required under part 383 of this subchapter;

    (ii) The driver operates within a 150 air-mile radius of the location where the driver reports to and is released from work, i.e., the normal work reporting location;

    (iii) The driver returns to the normal work reporting location at the end of each duty tour;

    (iv) The driver does not drive:

    (A) After the 14th hour after coming on duty on 5 days of any period of 7 consecutive days; and

    (B) After the 16th hour after coming on duty on 2 days of any period of 7 consecutive days;

    (v) The motor carrier that employs the driver maintains and retains for a period of 6 months accurate and true time records showing:

    (A) The time the driver reports for duty each day;

    (B) The total number of hours the driver is on duty each day;

    (C) The time the driver is released from duty each day;

    (D) The total time for the preceding 7 days in accordance with § 395.8(j)(2) for drivers used for the first time or intermittently.

    §395.3 provides, in pertinent part:

    (a) Except as otherwise provided in §395.1, no motor carrier shall permit or require any driver used by it to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver's services, unless the driver complies with the following requirements:

    (1) Start of work shift. A driver may not drive without first taking 10 consecutive hours off duty;

    (2) 14–hour period. A driver may not drive after a period of 14 consecutive hours after coming on-duty following 10 consecutive hours off-duty.

    (3) Driving time and interruptions of driving periods—

    (i) Driving time. A driver may drive a total of 11 hours during the period specified in paragraph (a)(2) of this section.

    (ii) Interruption of driving time. Except for drivers who qualify for either of the short-haul exceptions in § 395.1(e)(1) or (2), driving is not permitted if more than 8 hours of driving time have passed without at least a consecutive 30–minute interruption in driving status. A consecutive 30–minute interruption of driving status may be satisfied either by off-duty, sleeper berth or on-duty not driving time or by a combination of off-duty, sleeper berth and on-duty not driving time.

    (b) No motor carrier shall permit or require a driver of a property-carrying commercial motor vehicle to drive, nor shall any driver drive a property-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver's services, for any period after—

    (1) Having been on duty 60 hours in any period of 7 consecutive days if the employing motor carrier does not operate commercial motor vehicles every day of the week; or

    (2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates commercial motor vehicles every day of the week.

    (c)(1) Any period of 7 consecutive days may end with the beginning of an off-duty period of 34 or more consecutive hours.

    (2) Any period of 8 consecutive days may end with the beginning of an off-duty period of 34 or more consecutive hours.

    Defendants argue that, even though Plaintiff is arguably exempt from certain requirements of §395.3(a)(2) per §395.1(e)(2), there are other wage and hour laws that DO apply to short-haul truck drivers, such that the Act still preempts any claim under state wage and hour laws. Plaintiff argues this issue was considered and decided against Defendants in the case of International Brotherhood of Teamsters, Local 2785, et al., v. Federal Motor Carrier Safety Administration (2021) 986 F.3d at 845 and 847. In that case, the FMCSA was asked to determine whether long haul truck drivers’ claims for meal and rest break violations under state law were preempted by the Act. The FMCSA determined they were, and the United States Court of Appeals, Ninth District, agreed. Notably, the question before the Court was NOT whether or not preemption applies to short-haul drivers. Two portions of the case briefly mention short-haul drivers, for the purpose of distinguishing them. First, the Court held:

    In 2011, the FMCSA revised the federal hours-of-service regulations and adopted the rules on breaks for truck drivers that form the basis for the FMCSA's 2018 decision to preempt California's MRB rules. See Hours of Service of Drivers, 76 Fed. Reg. 81,134, 81,188 (Dec. 27, 2011) (codified at 49 C.F.R. § 395.3). Except for certain “short-haul” drivers, a property-carrying commercial motor vehicle driver working more than eight hours must take at least one 30-minute break during the first eight hours, although the driver has flexibility as to when the break occurs. 49 C.F.R. § 395.3(a)(3)(ii). That 30-minute break can be spent “off-duty” or in a “sleeper berth.” Id.2 The 2011 break requirement supplemented longstanding federal regulations prohibiting a driver from operating a commercial motor vehicle if too fatigued or unable to safely drive. 49 C.F.R. § 392.3. Employers may not coerce drivers to violate this rule or the hours-of-service rules. Id. § 390.6. The federal regulations do not require other breaks.

    Second, the Court went on to hold:

    Finally, our decision in Dilts, 769 F.3d 637, does not foreclose the FMCSA's interpretation. Dilts concerned the scope of an express preemption provision in the Federal Aviation Administration Authorization Act of 1994 (FAAAA) that prohibits state laws that are “related to” prices, routes, or services of commercial motor vehicles. 49 U.S.C. § 14501(c)(1). Although Dilts held that this provision did not preempt California's MRB rules, see 769 F.3d at 647–50, we did not interpret the preemption provision at issue here. Dilts therefore did not address whether the MRB rules could fall within section 31141’s scope. Indeed, the plaintiffs in Dilts worked exclusively in California as short-haul drivers and were thus not even “covered by ... federal hours-of-service regulations.” Id. at 648 n.2.

    Defendants argue none of the foregoing means short-haul drivers’ claims for CA-based meal and rest break violations aren’t preempted, because the specific provisions at issue in Brotherhood of Teamsters aren’t at issue here. Defendants argue there are provisions in the Act that apply to short-haul drivers, and those provisions make clear that a short-haul driver cannot drive when tired, ill, or other conditions exist that would make driving unsafe. Defendants argue these provisions are arguably stricter than CA’s meal and rest break requirements, and therefore preempt the requirements.

    The Court disagrees. At a minimum, Defendants have not met their burden of showing there are provisions akin to meal and rest break provisions in the Act that would preempt CA’s meal and rest break provisions. Provisions generally governing drivers’ obligations to ensure they are not tired, ill, or otherwise unfit to drive are not akin to meal and rest break provisions. Absent some authority on point, the Court finds Defendants failed to meet their burden to show Plaintiff’s claims, as a short-haul driver, are preempted.

  5. Exclusive Jurisdiction

    Defendants raise a new argument in their supplemental brief. Defendants argue the FMCSA has exclusive jurisdiction to address the issue pending before the Court in the first instance, and this Court cannot even make the contention that Plaintiff’s claims are not preempted. Defendants indicate they have informally requested guidance from the FMCSA and are awaiting a response. Notably, this Court has been presented with this issue twice previously (in unrelated cases), and has ruled on the jurisdiction issue differently each time it was presented. Plaintiff argues the other cases are not relevant, both because they have no value as precedent, and also because they were decided before Brotherhood of Teamsters. The Court agrees; it has not considered its prior ruling on the jurisdiction issue in ruling on this demurrer.

    As Defendants concede, they did not raise this issue in their demurrer. It is arguably waived. Even if they had raised it in their demurrer, they failed to show the issue subjects the complaint to demurrer. They failed to show the procedural mechanism by which an issue is supposed to be submitted to the FMCSA, failed to show presenting the issue to the FMCSA is a procedural prerequisite to bringing an action, and failed to show failure to present a claim to the FMCSA renders the complaint fatally deficient and subject to demurrer. Defendants therefore failed to meet their burden to show the complaint is subject to demurrer in this regard, and the demurrer is overruled. The ruling is without prejudice to Defendants’ right to raise this issue in the future in this case, especially if the FMCSA issues guidance in their favor. This Court will likely be inclined to give deference to any guidance issued by the FMCSA, and asks Counsel to consider the guidance carefully in connection with ongoing litigation.

  6. Conclusion

    The demurrer is overruled. Defendants are ordered to file an answer within ten days. Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.

Case Number: 20LBCV00279    Hearing Date: March 23, 2021    Dept: S27

  1. Background Facts

    Plaintiff, Johel A. Climaco Valencia filed this action against Defendants, Franco Transport, LLC, Fiasco Enterprises, Inc., Fiasco Enterprises, Inc. dba Energy Transport Logistics, Pablo Franco, William Sheridan, Matthew Rohasek, and Jacob J. Vega for various wage and hour violations. Plaintiff filed his complaint on 6/09/20. On 10/02/20, Plaintiff filed a First Amended Complaint. The FAC was similar to the original complaint, but was pled as a PAGA representative complaint and not just an individual complaint.

    On 11/25/20, Defendant, Pablo Franco filed a demurrer to the FAC. On 12/18/20, the parties stipulated that Plaintiff would be permitted to file a Second Amended Complaint, but the 11/25/20 demurrer to the FAC would be deemed a demurrer to the SAC.

  2. Demurrer

  1. Parties’ Positions

    Defendant demurs to the second, third, and fourth causes of action in the SAC, which seek damages arising out of a failure to pay meal and rest periods. Defendant contends the claims are preempted per 49 U.S.C. §31141(c). Defendant contends any truck carrying cargo that was previously on a container ship from overseas is involved in interstate commerce, all meal and rest period claims for such drivers are preempted, and therefore Plaintiff’s causes of action are preempted.

    Plaintiff opposes the demurrer. He contends preemption does not apply to short-haul truck drivers, and Plaintiff’s complaint does not show, on its face, that he was not a short-haul truck driver.

  2. Request for Judicial Notice

    Defendant seeks judicial notice of the DOT’s Order re: meal and rest break rules, the fact that marine terminals are located in the ports of LB and LA, the fact that container ships “call on” the ports, the fact that trucks on the streets and highways in LB carry containers to and from the ports, and the statutory venue requirements requiring cases arising from activities in the ports to be filed in the South District. The RJN is granted.

  3. Initial Note

    Plaintiff timely filed and served his opposition papers on 3/10/21. Any reply to the opposition was due on or before 3/16/21. CCP §1005(b). Defendant filed untimely reply papers on 3/18/21. This greatly inconvenienced the Court, as the Court had already prepared a tentative ruling on the demurrer prior to receipt of the reply papers. The Court asks Defense Counsel to ensure timely and proper filing and service of all papers in the future in connection with this and other actions.

  4. Analysis

    Defendant contends judicially noticeable facts show that Plaintiff was engaged in interstate commerce, and all truck drivers engaged in interstate commerce are subject to the meal and rest break provisions of the U.S. DOT/FMCSA Hours of Service Regulations (“HOSR”), which preempt state and local meal and rest period requirements.

    Plaintiff, in opposition to the demurrer, does not contend he was not involved in interstate commerce. The Court, therefore, finds he has conceded that issue. Plaintiff argues instead that, pursuant to International Brotherhood of Teamsters, Local 2785 v. Federal Motor Carrier Safety Administration (9th Cir. 2021) 986 F.3d 841, 845, federal preemption of meal and rest period laws under 49 U.S.C. §31141 does not apply to short-haul truck drivers. He contends the face of his FAC does not show whether he was a short-haul or long-haul driver, and therefore the Court cannot determine that his state wage and hour claims for meal and rest period violations are preempted.

    Defendant, in reply, contends (a) Plaintiff has not alleged that he qualifies for the short-haul exception to the HOSR and, even if he does qualify, the short-haul exceptions relate only to requirements concerning logs and records and supporting documents such as bills of lading; it contends the exceptions do not apply to meal and rest break periods, which are preempted by the HOSR’s hours of service requirements. Defendant, at page 5 of the reply, relies extensively on 49 C.F.R. §395. The Court cannot locate a §395 on Westlaw. Part 395 exists, but it commences with §395.1. Additionally, Defendant provided a copy of §395.1, but (a)(3)(i) and (ii), the sub-parts upon which Defendant relies, are not found in §395.1, the section attached. The Court, therefore, cannot verify Defendant’s contention that the provision relied upon exists and is intended to govern short-haul drivers’ meal and rest breaks.

    The Court is concerned, because it does appear that Defendant is correct. It appears there are specific carve-outs in Part 395 for short-haul drivers, but it appears there are also provisions expressly governing meal and rest breaks for short-haul drivers.

    The Court notes that the demurrer lacks the statutorily required meet and confer declaration. CCP §430.41 obligates Counsel to meet and confer prior to filing a demurrer. The hearing on this demurrer is continued to Thursday, 4/22/21 at 8:30 a.m. in Department S27 of the Long Beach Courthouse. Counsel are ordered to meet and confer forthwith. The Court asks them to meet and confer on two topics. First, the Court asks Counsel to meet and confer to determine whether they both agree that Plaintiff is a driver in interstate commerce, such that preemption is potentially in play. Second, the Court asks them to meet and confer concerning the scope of HOSR preemption. They must discuss the specific subdivisions relied upon by Defendant in his reply papers.

    If the parties are able to resolve their remaining issues, Defendant must take the continued demurrer off calendar using the online reservation system at least one week prior to the hearing. If they are unable to resolve their issues, they must each submit a brief detailing their positions on any remaining issues at least one week prior to the continued hearing date. The Court will not consider any late-filed briefs.

    Defendant is ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.

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