Rose F. Luzon (State Bar No. 221544)
`rluzon@sfmslaw.com
`SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
`401 West A Street, Suite 2350
`San Diego, CA 92101
`Telephone: (619) 235-2416
`Facsimile: (619) 234-7334
`Email: rluzon@sfmslaw.com
`
`,
`
`Attorneyfor PlaintiffPJ. Preeshl and the Class
`
`
`
`ELECTRONICALLY
`FILE.
`Superior Court of Califarnia,
`County of San Francigco
`MAY 22 2013
`Clerk of the Court
`BY. VANESSA WU
`Deputy Clerk
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`COUNTYOF SAN FRANCISCO
`
`P. J. PREESHL,individually and on behalf of
`all others similarly situated,
`
`1) CASE NO. CGC-12-519752
`
`) )
`
`@ormerly Consolidated with Case No. CGC-11
`) 514941)
`)
`) CLASS ACTION
`)
`SANTICA RESEARCH LABS,LLC, a Florida ) MEMORANDUMOF POINTS AND
`Corporation,
`) AUTHORITIES IN SUPPORT OF
`) PLAINTIFF’S MOTION TO DISMISS
`) CLASS ACTION PURSUANTTO CAL.
`) RULES OF COURT, RULE3.770
`
`Plaintiff,
`
`v.
`
`Defendant.
`
`) )
`
`June 27, 2013
`Date:
`) Time: 11:00 a.m.
`) Dept: 305 - Hon. John E. Munter
`
`*HEARING WAIVED
`
`) )
`
`Plaintiff, PJ. Preeshl (“Plaintiff”) respectfully submits this Memorandum of Points and
`
`
`
`Authorities in support of her Motion to Dismiss Class Action Pursuant to Cal. Rules of Court, Rule
`
`3.770 (“Motion”).
`
`I.
`
`INTRODUCTION
`
`In putative class actions such as here, the Court may dismiss the action without a hearing
`
`and without notice to class membersif the requirements of Rule 3.770 of the California Rules of
`]
`MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO DISMIS
`CLASS ACTION PURSUANT TO CAL. RULES OF COURT, RULE 3.77
`
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`Court have been met andif no prejudice to class members results. Plaintiffs motion to dismiss the
`
`instant class action satisfies these standards.
`
`First, Plaintiff has submitted a declaration in support of this Motion whichsets forth the
`facts supporting her request for dismissal. (See Declaration of Rose F. Luzon (“Luzon Decl.”).
`Second, the declaration clearly states that no consideration of any kind is being given for this
`dismissal. Finally, this caseis still in its very early stages (discovery has barely commenced, the
`Court has notcertified any class and no motion for class certification is pending, and notrial date
`has been set). Accordingly, class members will not be prejudiced by the dismissal.
`
`Consistent with the Rule 3.770 of the California Rules of Court, the Court should therefore
`
`grant this motion and dismiss the class action without a hearing and without notice to class
`
`members.
`
`Il.
`
`FACTUAL BACKGROUND
`
`On October 4, 2011, Plaintiff filed a putative class action Complaint against Santica
`
`Research Labs, LLC (“Santica”) alleging that Santica has advertised, labeled, offered for sale, sold
`and distributed CelluScience Anti-Cellulite Beauté Intensive (“CelluScience)in a false, misleading
`and/or deceptive fashion. (See generally Complaint). The Complaint asserts violations of the
`
`Business & Professions Code, § 17200, et seg., Business & Professions Code § 17500, et seg., and
`
`California Civil Code § 1750,et seg.id.) This case wasoriginally filed in the Superior Court of
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`California, Santa Clara County.
`
`Thiscase is in its very early stages. (Register of Actions, Preeshi v. Santica Research
`
`Labs, LLC (“Preesh?”), Civil Action No. CGC-12-519752),. Discovery has barely commenced,the
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`Court has not certified the class nor is a motion for class certification pending, and no trial date has
`
`been set.
`
`After filing the Complaint, counsel for Plaintiff learned of a similar class action pending
`
`against Santica in the Superior Court of California, San Francisco County (Complaint, Meredith
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`Russo v. Santica USA Research Labs, LLC, et al. (“Russo”), Civil Action No. CGC-11-514941).
`
`Therefore, on April 4, 2012, the Preesh/ action was transferred to the Superior Court of California,
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`2
`MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO DISMIS
`CLASS ACTION PURSUANT TO CAL. RULES OF COURT, RULE 3.77
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`San Francisco County and subsequently consolidated with the Russo action. (Luzon Decl., Jf 4-
`5.) The Russo action has since been dismissed. (Luzon Decl., 45.) In light of the Russo dismissal
`and given the numerouschallenges presented bythis action, Plaintiff requests to dismiss this
`action. (Luzon Decl., 4 6). Absolutely no consideration, whether direct or indirect, is being
`given by any partyfor the dismissal. (Luzon Decl., ff 9-10).
`The Court advised Plaintiff of the needto file a regularly noticed motion in compliance
`with California Code of Civil Procedure § 1005 and Rule 3.1110, et seq. of the California Rules of
`Court. Accordingly, Plaintiff submits this Motion seeking dismissal of the Complaint.
`LEGAL ARGUMENT
`Wl.
`
`Rule 3.770(a) of the California Rules of Court sets forth the procedure for dismissal of a
`class action:
`
`.
`.
`. requires court approval. .
`.
`A dismissal of an entire class action .
`Requests for dismissal must be accompanied bya declaration setting
`forth the facts on which the party relies. The declaration must
`clearly state whether consideration,direct or indirect, is being given
`for the dismissal and must describe the consideration in detail.
`
`Pursuant to Rule 3.770(b), the Court is authorized to grant a request for dismissal of a class action
`
`without a hearing. Further, Rule 3.770(c) provides:
`
`If the court has not ruled onclasscertification, or if notice of the
`pendencyofthe action has not been provided to class members in a
`case in which such notice was required, notice of the proposed
`dismissal may be given in the manner and to those class members
`specified by the court, er the action may be dismissed without
`notice to the class membersifthe courtfinds that the dismissal will
`notprejudice them. (Emphasis added)
`
`Dismissal of the Complaintin this case, without a hearing and withoutnotice to class
`
`members, is proper becauseall of the requirements of Rules 3.770 have been met. Specifically,
`Plaintiff, through her counsel, has submitted herewith a declaration detailing the facts
`
`supporting her request for dismissal. Further, Plaintiffs declaration clearly states that no
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`consideration whatsoeveris being given for the dismissal. (Luzon Decl., ff 9-10.) Finally, since
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`MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTIONTO DISMIS
`CLASS ACTION PURSUANTTO CAL. RULES OF COURT, RULE 3.77
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`the instantcaseisstill in its early stages, dismissal ofthis case without notice to class membersis
`not unfair and will not result in undue prejudice to them.
`
`IV.
`
`CONCLUSION
`
`Forthe foregoing reasons, Plaintiff respectfully requests that the Court grant this Motion
`and approve Plaintiff's request for dismissal of this case. Plaintiff further requests that such
`dismissal occur without a hearing and without notice to class membersin accordance with Rule
`3.770(b) and (c) ofthe California Rules of Court. Plaintiff submits a [Proposed] Order Granting
`Plaintiff's Motion to Dismiss Class Action Pursuant to Cal. Rules of Court, Rule 3.770, which is
`substantially similar to that adopted and entered by this Court in the Russo action. Plaintiff
`
`respectfully asks the Court to grant such Order.
`
`Date: May 22, 2013
`
`401 West A Street, Suite 2350
`San Diego, CA 92101
`Telephone: (619) 235-2416
`Facsimile: (619) 234-7334
`Email: rluzon@sfmslaw.com
`
`Nathan C. Zipperian
`SHEPHERD, FINKELMAN,
`MILLER & SHAH, LLP
`1640 Town Center Circle, Suite 216
`Weston, FL 33326
`Telephone: (954) 515 0123
`Facsimile:
`(954) 515 0124
`Email: nzipperman@sfinslaw.com
`
`James C. Shah (SBN 260435)
`Scott R. Shepherd
`SHEPHERD, FINKELMAN,
`MILLER & SHAH, LLP
`38 E. State Street
`Media, PA 19063
`
`4
`MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO DISMIS
`CLASS ACTION PURSUANTTO CAL. RULES OF COURT, RULE 3.77
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`BOBDBRBethmhfmmpunkeUekRRORRSESSReRARBDERDSTS
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`Telephone: (610) 891 9880
`Facsimile: (610) 891 9883
`Email: jshah@stmslaw.com
`
`sshepherd@sfmslaw,com
`
`
`
`Kevin P. Roddy
`Daniel R. Lapinski
`WILENTZ, GOLDMAN & SPITZER,P.A.
`90 Woodbridge Center Drive
`Suite 900, Box 10
`Woodbridge, NJ 07095
`Telephone:
`(732) 636 8000
`Facsimile:
`(732) 855 6117
`Email: kroddy@wilentz.com
`dlapinski@iwilentz.com
`
`Attorneysfor Plaintiffand the Class
`
`5
`MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO DISMIS
`CLASS ACTION PURSUANTTO CAL. RULES OF COURT, RULE 3.77
`
`