Shloss v. Joyce

Filing 55

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Shloss v. Joyce Doc. 55 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) Plaint iffs, ) ) vs. ) ) HARMONIX MUSIC SYSTEMS, INC., a ) corporation; MTV NETWORKS, a division of ) VIACOM INTERNATIONAL, INC., a ) corporation; ELECTRONIC ARTS, Inc., a ) corporation; and DOES 1 Through 10, ) ) Defendants. ) ) Case No. CV 08 5211 BZ [PROPOSED] ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT AND MOTION TO STRIKE Date: Time: Ctrm: Judge: June 17, 2009 10:00 a.m. G Hon. Bernard Zimmerman 11 MONTE MORGAN and F. JASON VASQUEZ, on behalf of themselves and all 12 others similarly situated, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint Filed: Nov. 18, 2008 First Amended Complaint Filed: Dec. 23, 2008 1993263.1 [PROPOSED] ORDER GRANTING MOTION TO DISMISS COMPLAINT Dockets.Justia.com 1 The Motion to Dismiss Complaint and Motion to Strike filed by defendants Harmonix 2 Music Systems, Inc., Viacom International Inc. and Electronic Arts Inc. (collectively, 3 "Defendants") came on for hearing before the Court on June 17, 2009. After considering the 4 papers submitted in support of and in opposition to the motion, arguments of counsel, and all other 5 matters presented to the court, 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 // // // // // -11993263.1 [PROPOSED] ORDER GRANTING MOTION TO DISMISS COMPLAINT IT IS HEREBY ORDERED AS FOLLOWS: Defendants' Motion is GRANTED: The portion of paragraph 43 of the First Amended Complaint with the following language defining the putative class as "[a]ll persons and entities who purchased a Rock Band drum kit, either separately or as part of a bundled peripheral package" (Page 12, Lines 26-27) is STRICKEN. The portion of paragraph 64 of the First Amended Complaint with the following language, "plaintiff class members ... are thus `consumers' within the meaning of Cal. Civ. Code 1761(d)" (Page 15, Lines 20-22) is STRICKEN. The First Cause of Action of the First Amended Complaint of plaintiffs Monte Morgan and F. Jason Vasquez ("Plaintiffs") against the Defendants, for breach of the implied warranty of merchantability is DISMISSED WITHOUT LEAVE TO AMEND. The Second Cause of Action of Plaintiffs' First Amended Complaint, for breach of the implied warranty of fitness for a particular purpose is DISMISSED WITHOUT LEAVE TO AMEND. The Third Cause of Action of Plaintiff s First Amended Complaint, for violations of the Consumer Legal Remedies Act, Cal. Civ. Code 1750 et seq., is DISMISSED WITHOUT LEAVE TO AMEND. 1 2 3 4 5 6 7 The Fourth Cause of Action of the Complaint, for violations of the Unfair Competition Law, Cal. Bus. & Prof. Code 17200 et seq., is DISMISSED WITHOUT LEAVE TO AMEND. IT IS SO ORDERED. 8 Dated: ___________________________ 9 10 11 Respect fully Submitted, 12 Kendall Brill & Klieger LLP Richard B. Kendall (90072) 13 Richard M. Simon (240530) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -21993263.1 [PROPOSED] ORDER GRANTING MOTION TO DISMISS COMPLAINT Honorable Bernard Zimmerman Magistrate Judge, United States District Court By: /s/ Richard B. Kendall Attorneys for Defendants Harmonix Music Systems, Inc. Viaco m Inc. and Electronic Arts Inc.

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