TENTATIVE RULINGS

 

DEPT C-13

 

Judge John C. Gastelum

The court will hear oral argument on all matters at the time noticed for the hearing, unless the Court has stated that the matter is off calendar. If you would prefer to submit to the Court’s tentative without oral argument, advise all counsel first and then moving party is to telephone the clerk at (657)622-5213. If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Rulings are normally posted on the Internet by 4:30 p.m. on the day before the hearing.  Generally, motions will not be continued or taken off calendar after the tentative has been posted. The moving party shall give notice of the ruling.

DO NOT CALL THE DEPARTMENT TO VERIFY IF YOU SHOULD APPEAR OR NOT.  PLEASE READ YOUR TENTATIVE FOR THE INFORMATION.

 

Date: 4/21/15

 

 

STARTING AUGUST 25, 2014, ORANGE COUNTY SUPERIOR COURT WILL NOT SUPPLY COURT REPORTERS FOR LAW AND MOTION CALENDARS.  PLEASE SEE THE COURT’S PUBLIC WEBSITE FOR INSTRUCTIONS IF YOU WISH TO HAVE A COURT REPORTER.

 

 

 

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Case Name

Tentative

 

 

 

1

Abbott vs Sun

Motion for Summary Judgment and/or SAI   

 

Tentative Ruling:   The unopposed Motion for Summary Judgment filed by Defendant Hoag Memorial Hospital Presbyterian dba Hoag Hospital Irvine (“Hoag”) is GRANTED.  Hoag has met its initial burden through expert testimony from Drs. Wagner and Baraff, who states that Hoag and its nursing staff and ancillary personnel complied with the applicable standard of care, and that no act or omission of Hoag or its nursing staff or ancillary personnel caused or contributed to Plaintiff’s alleged injuries. The burden thus shifted to Plaintiff to produce admissible evidence showing the existence of a triable issue of material fact. Plaintiff instead filed a notice of non-opposition. Summary Judgment for Hoag is therefore GRANTED.  Moving Party to is give notice.

 

2

Amos Financial vs Elsharkany

(1-2) Motions to Set Aside/Vacate Default and Judgment   

 

Ruling:  Off Calendar per MP – no hearing will be held.  Continued to 6-23-15, Dept. C13, at 2 pm.

3

Baines vs Bethesda University

(1) Demurrer to First Amended Complaint (FAC) (2) CMC   

 

Tentative Ruling:  The court SUSTAINS the unopposed demurrer of Defendant Bethesda University of California to the FAC by Plaintiff Timothy A. Banes without leave to amend. The essential elements to be pled in an action for breach of contract are (i) the existence of the contract; (ii) plaintiff’s performance of the contract or excuse for non-performance (iii) defendant’s breach of the contract (iv) the resulting damage to plaintiff.  (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.) Here, it does not appear a written contract exists. Plaintiff concedes in the FAC that no written agreement was executed by the parties. “The written employment agreement between the parties was mandated for signature by defendant in order to retain position of head men’s basketball coach; not ‘conveniently signed’ as stated by defendant’s attorney. Defendant purposefully never signed written agreement—showing bad faith and denial of contract and did not allow plaintiff to complete said contract.”  (FAC p. 1:27-28 to p. 2:1-5.)  If no written contract existed, then plaintiff needed to plead something besides breach of written contract or make arguments as to why a written agreement existed. He failed to do so despite this being his second bite at the apple. Much like the last demurrer, this demurrer, too, goes unopposed. Plaintiff failed to sustain his burden to demonstrate how the complaint can be amended to state a cause of action. (Taxpayers for Improving Public Safety v. Schwarzenegger (2009) 172 Cal.App.4th 749, 781.)

 

4

Blackrock Lending Group vs DKS Inc.

Motion for Attorney Fees   

 

Ruling:  Off Calendar – no hearing will be held.   The Motion for Attorney Fees filed by Plaintiff Blackrock Lending Group LLC dba Quick Bridge Funding is CONTINUED to 5-26-15, Dept. C13, at 2 pm, for proper service. The Motion was evidently served on the parties, but not on their counsel of record (Leech Tishman Fuscaldo & Lampl, LLP).  Plaintiff is to give notice of the motion and of this ruling to all parties and their counsel of record and file a proof of service reflecting same by no later than 4-23-15, 4 pm.

 

5

Coastal Heart vs The Lal Law Firm

(1) Petition to Compel Arbitration (2) Status Conference   

 

Tentative Ruling:   Plaintiffs Coastal Heart, Inc., Coastal Heart Medical Group, Amer Zarka, M.D., and Anil Shah, M.D.’s Motion to Compel Arbitration and Consolidate the Arbitration Proceedings

is GRANTED.  The unopposed request for judicial notice is GRANTED under Evidence Code section 452(d).

 

Plaintiffs have sufficiently established the existence of arbitration agreements and that the scope is sufficiently broad to cover the instant action.  With respect to the nonsignatory Plaintiffs, Defendant Jack Rippy previously moved to compel arbitration against these Plaintiffs and argued they are bound by the arbitration agreement as nonsignatories, and an agency relationship existed.  Defendant Rippy also submitted his declaration in support of these contentions raised.  Therefore, Defendant Rippy has made a judicial admission stating that Plaintiffs Coastal Heart and Zarka are also bound by the arbitration agreement. (See, Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 452.)  In addition, Defendant The Lal Law Firm likewise moved previously moved to compel arbitration against these Plaintiffs.  Further, the subject arbitration agreement signed by Defendant The Lal Law Firm has a signature line for “Coastal Heart Medical Group” (which is the dba for Plaintiff Coastal Heart, Inc.).  An agent-employee can be bound by an arbitration agreement. (RN Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511, 1520.)

 

In addition, Plaintiffs have not waived their right to arbitrate. Plaintiffs’ mere filing of suit on an arbitrable claim does not per se waive Plaintiffs’ right to demand arbitration later. (Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1200.)  In addition, Plaintiffs’ act of opposing Defendants The Lal Law Firm and Rippy’s Motions to Compel Arbitration and filing a Motion to Stay the AAA Proceedings is not necessarily inconsistent with their right to arbitrate.  Plaintiffs simply sought to consolidate the arbitration proceedings into one single forum in order to avoid inconsistent rulings.  Further, although 16 months has passed since the inception of the lawsuit, the court has imposed a STAY in this action pending the AAA proceedings.  Therefore, the court finds that the delay was not an “unreasonable” delay, and that there was no resulting prejudice suffered by the parties as a result of the delay. Finally, the law favors arbitration, and waiver will not be lightly inferred. The party claiming waiver “bears a heavy burden of proof.” (Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195.)  Any doubts as to waiver should be resolved in favor of arbitration. (Id.)

 

Defendant Rippy contends that in light of the possibility of inconsistent rulings, the court should deny the motion to compel arbitration under Code of Civil Procedure section 1281.2(c).  However, consolidation of the arbitration proceedings and staying this action pending the arbitration proceedings minimizes the possibility of inconsistent rulings. 

 

Defendant The Lal Law Firm contends it will suffer undue prejudice if it is compelled to arbitrate its dispute.  The court is not persuaded by this contention, and finds Defendant The Lal Law Firm will not suffer undue prejudice if ordered to arbitrate its dispute.

 

Plaintiffs Coastal Heart, Inc., Coastal Heart Medical Group, Amer Zarka, M.D., and Anil Shah, M.D.’s Motion to Consolidate Arbitration Proceedings is GRANTED.

 

Here, the parties are bound by different arbitration agreements. (See supra.)  In addition, the dispute arises from Defendants’ representation of Plaintiffs in the separate lawsuit of Coastal Heart Medical Group v. Renaissance Surgical Arts at Newport Beach, Orange County Superior Court Case No. 2011-493127.  Defendants’ representation of Plaintiffs in this case have overlapped (i.e., the attorneys were at one point in time served as co-counsels).  Thus, the dispute arises from a series of related transactions, and there are common issues of law and fact that creates a possibility of conflicting ruling by more than one arbitrator or panel of arbitrators.  Therefore, the requirements for consolidation under Code of Civil Procedure section 1281.3 have been satisfied. 

 

Defendant Werner contends that Plaintiffs should be estopped from seeking to consolidate the arbitration proceedings.  Defendant has failed to provide any authority showing that Plaintiffs had some sort duty or obligation to inform Werner of the terms of their retainer agreement with the other Defendants.  Moreover, the cases cited to by Defendant Werner in support of his contention (Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1130-31 and Sobremonte v. Superior Court (Bank of America Nat. Trust and Sav. Ass'n) (1998) 61 Cal.App.4th 980, 983-84) do not stand for the authority that Plaintiffs have waived their right to consolidate the arbitration proceedings by failing to inform a co-counsel of record of the other co-counsel’s retainer agreement.

 

In addition, Defendant Werner contends that consolidation would substantially interfere with his right to move forward with the AAA arbitration proceedings.  However, Code of Civil Procedure section  1281.3 specifically authorizes the court to appoint an arbitrator under the procedures of Code of Civil Procedure section 1281.6 if the arbitration provisions set forth different arbitrators or panels.  The court finds that consolidation of the arbitration proceedings will not substantially interfere with Defendant Warner’s contractual rights.

 

Further, Defendant Werner contends that consolidation would result in unfair prejudice.  Other than the appointment of an arbitrator and notification of future hearing dates, Defendant has failed to establish that there has been substantial litigation in the AAA proceedings and that consolidation would therefore result in undue prejudice.  Moreover, on 2-26-15, this court ordered in relevant part as follows: “AAA is ordered to adjust its dates in connection with AAA case … until after the hearing on plaintiff’s Motion to Compel Arbitration is concluded and to rescind the appointment of the Arbitrator.”  Moreover, there does not appear to be undue burden in imposing additional expenses on the litigants by consolidating the arbitration proceedings because Defendants’ representation of Plaintiffs have overlapped and discovery would be substantially duplicative if the matters were not consolidated. 

 

The court orders the parties to comply with Code of Civil Procedure section 1281.6 as follows:

 

When a petition is made to the court to appoint a neutral arbitrator, the court shall nominate five persons from lists of persons supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration. The parties to the agreement who seek arbitration and against whom arbitration is sought may within five days of receipt of notice of the nominees from the court jointly select the arbitrator whether or not the arbitrator is among the nominees. If the parties fail to select an arbitrator within the five-day period, the court shall appoint the arbitrator from the nominees.”

 

The court imposes a limited STAY in this action pursuant to Code of Civil Procedure section 1281.2(c).  Other than the pending Motion for Leave to File a Cross-Complaint that is set to be heard on 6-30-15, the court STAYS this entire action.

 

Plaintiffs’ evidentiary objections to the Declaration of Lee Werner:  The evidentiary objections are OVERRULED in its entirety.

 

Moving Parties are to give notice.

6

Coleman vs Bangert

Motion to Disqualify Counsel of Record  

 

Tentative Ruling:  Plaintiff’s motion to disqualify Buffington Law Firm, P.C., and Roger Buffington as attorney of record for defendants and cross-complainants John Bangert, Francine Bangert and Handy Child Solutions, LLC is DENIED as MOOT to the LLC. A substitution as to the LLC has been filed.  RFJN granted.  The motion is also DENIED as to Buffington’s representation of the Bangerts.  As majority shareholders represented by counsel who also represented the LLC, if they were forced to retain new counsel as well, that new counsel would be privy to the same information that former counsel received from majority shareholder and corporation.  (Prof. Conduct Rule 3-310(C); Gong v. RFG Oil, Inc. (2008)166 Cal. App. 4th 209.) RP is to give notice.

 

7

Frederick Scalzo vs Newmeyer & Dillion

Petition to Confirm Arbitration Award   

 

Ruling:  Off Calendar – no hearing will be held.  Motion to Confirm Arbitration Award is CONTINUED to May 5, 2015, Dept. C13, at 2 pm, to be heard with Plaintiffs’ Demurrer to the Petition to Confirm Arbitration Award.   MP is to give notice.

 

8

Leason vs Nationstar Mortgage

Motion for Preliminary Injunction   

 

Tentative Ruling:  Motion for Preliminary Injunction is GRANTED, on the basis Plaintiff has demonstrated a threat of irreparable harm, combined with a probability of prevailing, as required.   (Butt v. State of California (1992) 4 Cal.4th 668, 678.) 

 

More specifically, Plaintiff has sufficiently demonstrated that Defendant proceeded to schedule a Trustee’s Sale, while a complete loan modification application was pending, in violation of Civil Code section 2923.6.  (See ¶7-¶11 of Leason Declaration.)   Thus, Plaintiff has demonstrated a likelihood of prevailing, on his claim brought under the Homeowner’s Bill of Rights.

 

The parties are requested to present evidence at the hearing concerning the amount of Plaintiff’s monthly mortgage payment, to allow a determination as to an appropriate bond, as required by Code of Civil Procedure section 529.

 

9

Long vs Meridian Sports

(1) Motion for Judgment on the Pleadings (2) CMC   

 

Ruling:  Off Calendar – no hearing will be held.  All proceedings stayed until 5-6-15.

10

Moore vs Oc Auto Exchange

(1) Motion to Compel Arbitration (2) Joinder (3) CMC   

 

Ruling:  Off Calendar – no hearing will be held.   Defendant’s Petition to Compel Arbitration is CONTINUED to 5-19-15, Dept. C13, at 2 pm for supplemental briefing.

 

The contract at issue, in the arbitration provision cited by moving parties, refers to an “Arbitration Provision on the reverse side of this contract” which was not provided to the Court.  The entire Arbitration Provision must be before the Court to permit a meaningful review of its terms. 

 

The Court also invites supplemental briefing on the extent to which arbitration provisions may properly be enforced in an action which includes, as one of many causes of action, a CLRA claim.  Plaintiff is to file and serve any supplemental briefing on this issue by no later than 5-11-15, 4pm.  Defendants are to file and serve any supplemental briefing on this issue by no later than 5-13-15, 4 pm.   Such supplemental submissions are not to exceed 5 pages of briefing per side.

 

Moving Party is to give notice.

 

11

Nguyen vs JPMorgan Chase Bank

(1) Demurrer to First Amended Cross-Complaint (FAXC) (2) Motion to Strike (3) CMC      

 

Tentative Ruling:  (1) Cross-Defendants Roxsan, LLC, Houshang Melamed, and Shala Melamed’s Demurrer to Kim Chung Trinh’s FAXC is SUSTAINED, with 21-days leave to amend.

 

1st COA (breach of oral contract):  Demurrer is SUSTAINED, with 21-days leave to amend.  Based on the facts alleged, the claim accrues on or about December 3, 2010.  The statute of limitations for oral contracts is two years under Code of Civil Procedure section 339(1).  Based on the facts pled, the statute of limitations has run.

 

2nd COA (intentional misrepresentation): Demurrer is SUSTAINED, with 21-days leave to amend. 

As discussed above, the claim accrues on or about December 3, 2010.  The statute of limitations for fraud is three years.  (Code Civ. Proc., § 338(d).)  Therefore, based on the facts pled, the statute of limitations has run.  In addition, the FAXC fails to plead fraud with the requisite specificity.  This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.  (Alfaro v. Community Housing Imp. System & Planning Ass’n, Inc. (2009) 171 Cal.App.4th 1356, 1384.)  “The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”  (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157; Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 308.) 

 

(2) Motion to Strike:  Cross-Defendants’ Motion to Strike Portions of the FAXC is MOOT in light of the  ruling on the demurrer.

 

Moving Parties are to give notice.

 

12

S.L. Contursi, Inc. vs Coe

(1) Demurrer to Cross-Complaint (2) CMC      

 

Tentative Ruling:  Demurrer to Cross-Complaint is SUSTAINED, in its entirety.  The Demurrer is SUSTAINED, without leave to amend, as to the Third and Fifth COAs.  The Demurrer is SUSTAINED, as to the remainder, with 15 days leave to amend.

 

Initially, the Court notes that Cross-Complainant’s Opposition effectively concedes that the First, Second, Fourth and Sixth COAs are barred by the applicable statute of limitations, absent application of the delayed discovery rule.  Indeed, a review of the applicable statute of limitations and the Cross-Complaint, which references an Agreement in 2009, suggests such concession is correct. (See ¶7 of Complaint and ¶1 of Cross-Complaint.)  While Complainant seeks to save these claims through reference to the delayed discovery rule, no allegations supporting delayed discovery were identified in the Cross-Complaint.  Thus, the Demurrer is SUSTAINED, with leave to amend, to allow Complainant an opportunity to state the same.

 

Additionally, the Demurrer to the Sixth COA is SUSTAINED, on the basis Complainant failed to allege the elements of Fraud and/or Negligent Misrepresentation with particularity, as required. (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.)

 

The Demurrer to the Seventh COA is SUSTAINED, for the additional reason that Complainant failed to allege facts demonstrating a fiduciary duty. (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1558.)

 

Last, the Demurer to the Third and Fifth COAs is SUSTAINED, without leave to amend, as neither states a claim:   As to the Third COA, as Complainant makes no reference to any unconscionable contract provisions, Civil Code section 1670.5 appears wholly inapplicable.   Further, as to the Fifth COA, Conspiracy is not an independent tort. (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823.)

 

13

The Springs Condominium vs Kodikara

Motion -- Other   

 

Ruling:  Off Calendar – no hearing will be held.  

 

Off calendar by the moving party.

 

14

Walker vs Wells Fargo Home

(1) Demurrer to Second Amended Complaint (SAC) (2) CMC   

 

Tentative Ruling:   The Demurrer by Wells Fargo Bank, N.A., to the First COA for Negligent Misrepresentation in Plaintiffs’ SAC is sustained without leave to amend.  Defendant’s RFJN is granted as to the existence of the documents attached thereto, but not the truth of or interpretation thereof.

 

Plaintiffs have now attempted three times to state a claim against Defendant arising from Plaintiffs’ unsuccessful attempt to obtain a modification of their interest-only mortgage, and they still are unable to do so.  The gravamen of Plaintiffs’ complaint continues to be that Wells Fargo unreasonably delayed and strung them along in considering their multiple loan modification applications, and then denied their application even though Plaintiffs met Defendant’s financial criteria.  Plaintiffs acknowledge, in Paragraph 86 of the SAC, that they have been unable to “negotiate” a new mortgage payment that they could afford.  Under California law, there is no duty on the part of a loan servicer like Wells Fargo to agree to any loan modification.  To the contrary, the HBOR “merely expresses the hope that lenders will offer loan modifications on certain terms” and “conspicuously does not require lenders to take any action.” (Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 222 & fn. 9; Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49 [lender does not have a common law duty of care to offer, consider, or approve a loan modification].)   Here, Plaintiffs still do not allege facts that would constitute any violation by Defendant of the Homeowner Bill of Rights.

 

Plaintiffs also do not allege a COA for misrepresentation on the part of Wells Fargo as to Plaintiffs’ loan modification applications.  First, Plaintiffs have failed to allege any representations of fact by Defendant.  As to Defendant’s alleged representation in 2013 that Plaintiffs qualify for a 40-year, 2 percent  fixed loan, Plaintiffs’ own allegations show this alleged oral representation was made before Plaintiffs had even submitted a loan modification application, making any alleged reliance on such a statement unreasonable on its face.  Indeed, Plaintiffs acknowledge that the alleged statement was accompanied by Defendant’s invitation that Plaintiff “apply” for a loan modification, indicating that approval had not yet been made.  (See SAC ¶ 43 [“Wells Fargo represented that Plaintiffs qualified for a 40-year, 2% fixed loan, and the representative encouraged Plaintiffs to apply.” (Emphasis added)].)  The other alleged representations made by Defendants, i.e., that Plaintiffs’ application was “in review,” are not alleged to be false.  And, even assuming for the sake of argument, that any of the above representations are actionable representations of fact, Plaintiffs fail to allege justifiable reliance and resulting damages. Plaintiffs allege only conclusory allegations of justifiable reliance and resulting damages. (SAC ¶¶ 103-104.)  As to Plaintiffs’ allegation that they have suffered damages due to “credit damage” and “potential property loss,” Plaintiffs acknowledge they defaulted on their loan payments because of their own financial hardship, not because of any conduct by Defendant. (SAC ¶¶ 40, 42.)  Further, damages incurred in preparing the loan applications, including Plaintiffs’ allegation that they incurred “legal costs,” are not recoverable. (Lueras v. BAC Home Loans, Supra, 221 Cal.App.4th at 79 [concluding the time and effort spent assembling materials for an application to modify a loan are non-recoverable nominal damages].) 

 

Finally, while Plaintiffs continue in their SAC to make vague, general, allegations of upcharging of fees by lenders like Defendant, they still do not allege any specific facts regarding what alleged unlawful charges have been imposed by Defendant, and that such charges were the cause of Plaintiffs’ inability to make their loan payments or cure their default.

 

Plaintiffs do not indicate in their Opposition any additional facts that would cure the defects in their SAC.  Therefore, leave to amend is denied.

 

Defendant is to give notice.

 

15

Woerz vs Systems Paving

(1) Motion to Compel Production (2) Motion for Leave to File First Amended Complaint (FAC)

 

Ruling:  Off Calendar – no hearing will be held.     (1) Plaintiffs’ Motion to Compel Defendant to Comply with Responses to RFPs and Monetary Sanctions is DENIED as MOOT.  Plaintiffs indicate in the Reply that Defendant has now complied with its discovery obligations, and that the only remaining issue is monetary sanctions.

 

Plaintiffs’ request for monetary sanctions is GRANTED, but in the reduced amount of $2,824.50, which the Court finds to be the reasonable amount of attorney fees and costs incurred by Plaintiffs in having to bring the Motion and prepare a Reply solely addressing the issue of sanctions.  Defendant, Systems Paving, Inc., is to pay the monetary sanctions to Plaintiffs on or before May 15, 2015.  Defendant did not conduct a full and diligent search at their storage facility for responsive documents relating to the project until after the Motion was filed and had, in fact, incorrectly represented to counsel for Plaintiffs that the project file from 10 years prior no longer existed.  It was not until after the Motion was filed that the company located the box in the same storage facility they had previously searched.  Defendant’s request for monetary sanctions in the Opposition is denied.

 

(2) Plaintiffs’ unopposed Motion for Leave to Amend is GRANTED.  Plaintiffs are to file and serve the FAC in the form attached as Exhibit “A” to the Motion within five days of the date of this Order.

 

Plaintiffs are to give notice.

 

16

Wooden vs HVM

(1) Motion for Judgment on the Pleadings (MJOP) (2) CMC

 

Tentative Ruling:   Defendant’s unopposed MJOP to the initial complaint is GRANTED, with 21-days leave to amend as to all causes of action except the 5th and 6th causes of action.  No opposition was filed.  Failure to oppose the MJOP may be construed as having abandoned the claims.  (See, Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal.  Accordingly, we deem plaintiffs to have abandoned the issue.”].)  The MJOP as to the 5th COA for “Endangerment of Life and Health” and the 6th COA for “Endangerment of Toxin Fumes” is granted without leave to amend as these are not known causes of action and are duplicative of the other causes of action.  RFJN of the Complaint (only) is granted.  MP is to give notice.