Shloss v. Joyce

Filing 55

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.