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.

 

Date: 08/19/14

 

 

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Case Name

Tentative

 

 

 

1

Asset Acceptance vs Roman

Motion for Reconsideration

 

Ruling:   Off Calendar – no hearing will be held.  Mr. Roman’s Motion for Reconsideration is DENIED under Code of Civil Procedure section 1008 on procedural grounds, because it fails to identify any new or different facts, circumstances, or law.  The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial. (New York Times Co. v. Sup.Ct. (Wall St. Network, Ltd.) (2005) 135 Cal.App.4th 206, 212–213.) The instant Motion fails to meet that standard. 

 

The alternative request for relief under Code of Civil Procedure section 473 is also DENIED because section 473(b) does not permit relief where the mistake is a failure to present evidence or argument on a prior motion, nor is such failure excusable neglect. Here, counsel failed to note the illness in the late-filed Motion to Tax, and then failed to file any reply at all, and thus failed to respond to NES’ objections to the untimely filing.  The instant motion thus seeks relief not due to counsel’s prior illness, but instead due to his failure to timely present evidence thereof. That does not present a basis for relief under section 473(b).

 

Moving party is to give notice.

2

Baines vs Bethesda University

(1) Demurrer to Complaint (2) CMC

 

Ruling:   (1-2) Off Calendar – no hearing will be held.  (1) The court SUSTAINS the unopposed demurrer of Defendant Bethesda University of California to the Complaint by Plaintiff Timothy A. Banes with leave to amend. The court construes Plaintiff’s failure to oppose the demurrer as an abandonment of his claims or an admission that the demurrer has merit.  (See Herzberg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].)

Plaintiffs shall file and serve any amended complaint within 20 days after service of notice of this order. 

 

(2) CMC is continued to 9-24-14, Dept. C13, at 8:45 am.  

 

MP is to serve notice of this order.

3

Jackson vs Jackson-Gossett

Off calendar.  Case transferred to Riverside

4

DeLaTorre vs The Regents of the University of California

(1) Motion for Summary Judgment and/or SAI (2) CMC

 

Tentative Ruling:  (1) Motion for Summary Judgment:  Initially, it is unclear whether Defendants served the subject medical records on Plaintiffs, as no Proof of Service could be located, specific to these documents.   As the subject records are referenced as “Exhibit ‘B’” within Mr. Salmond’s Declaration, it is possible these documents were encompassed within the service of the Declaration; however, as the subject records were separately filed, the same is not clear. 

 

Absent service of the subject records, Plaintiffs may justifiably believe Defendants, again, failed to comply with Garibay, such that an Opposition was unnecessary. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735.)   Further, absent proof of such service, Defendants have failed to serve all moving and supporting papers, as required by Code of Civil Procedure section 437c(a).

 

In the event, however, Defendants can demonstrate adequate service, the Court is inclined to GRANT the Motion for Summary Judgment.

 

Defendants present the testimony of Dr. Paul R. Weber, a licensed physician, board certified in Obstetrics and Gynecology, with over 30-years of experience.  (¶1 and ¶4 of Weber Dec.)  Dr. Weber declares that he is “aware of the standard of care that existed in 2010 and currently exists for Obstetrician and Gynecologists caring for and treating patients such as plaintiff, Irene De La Torre.” (¶6 of Weber Dec.)

Additionally, Dr. Weber declares he reviewed Mrs. De La Torre’s medical records from UCI Medical Center (¶7 of Weber Dec.), which Counsel Andrew Salmond provides as Exhibit “B.” (¶3 of Salmond Dec.)  

Thus, assuming adequate service, Defendants have fully complied with Garibay v. Hemmat (2008) 161 Cal.App.4th 735.   Finally, Dr. Weber declares: “Based upon my education, training and experience, and based upon my review of the medical records, I am of the opinion that defendant, Michael Berman, M.D. performed surgery on Irene De La Torre on June 28, 2010 in a manner that complied with the applicable standard of care.” (¶20 of Weber Dec.)   Likewise, Dr. Weber declares: “Based upon my education, training and experience, and based upon my review of the medical records, it is my opinion that in the post-operative period while the patient remained hospitalized at UCI Medical Center, her care met the standard of care for post-op evaluation of Dr. Berman’s June 28, 2010 surgery.” (¶21 of Weber Dec.) 

Consequently, Dr. Weber concludes: “Based upon my education, training and experience and based upon my review of the medical records, it is my opinion that the care and treatment rendered by Michael Berman, M.D. and The Regents of the University of California (UCI Medical Center) to Irene De La Torre in this case complied with the applicable standard of care in the community.” (¶22 of Weber Dec.)

 

Based on all of the above, Defendants have presented evidence which defeats essential elements of a claim for medical malpractice.  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468.)

 

As Plaintiffs failed to present conflicting expert evidence to dispute Dr. Weber’s testimony, Defendants are entitled to Summary Judgment, pursuant to Munro v. Regents of University of California (1989) 215 Cal.App.3d 977 and Willard v. Hagemeister (1981) 121 Cal.App.3d 406 (assuming adequate service).

 

Similarly, as Plaintiff Teddy De La Torre’s claim for Loss of Consortium is premised on the claim for Medical Negligence, judgment against the Second Cause of Action is equally justified. (Rodriguez v. Bethlehem Steep Corp. (1974) 12 Cal.3d 382, 408: “[F]or reasons of fairness and sound administration a spouse will not be permitted to initiate an action for loss of consortium…when the action of the other spouse for the negligent or intentional injury giving rise to such loss was concluded by settlement or judgment…”)

5

Do vs Wright

(1) Motion to Compel Production (2) Motion to Compel Answers to Special Irogs (3) Motion to Compel Answers to Form Irogs

 

Ruling:   (1-3) Off Calendar – no hearing will be held.  (1) Motion to Compel Response to Demand for Inspection.  (2) Motion to Compel Response to Special Interrogatories.  (3) Motion to Compel Response to Form Interrogatories are all CONTINUED to September  9, 2014, Dept. C13, at 2 pm, to allow Defendant to provide a Proof of Service, specifying the discovery included in the PDFS electronically served on January 31, 2014.

 

The Court notes the initial service of the Demands for Inspection, Special Interrogatories and Form Interrogatories was defective, as the address served was not the address of record for Plaintiffs’ Counsel.  However, pursuant to the email exchange attached as Exhibit “D,” Plaintiff’s Counsel was electronically served on January 31, 2014 with “discoveryrequeststoGibo.pdf” and “DiscReqtoDo.pdf.”

 

Based on the above, even though the initial service was defective, it appears adequate service may have been completed on January 31, 2014, however, the Court cannot confirm  the attached PDF documents contained all three individual requests for discovery.  Unfortunately, the Declarations of Mr. Mahlstedt provide no clarification, as Counsel merely (apparently incorrectly) states: “My office then e-mailed the responses to Mr. Szeto…” (¶5 of Mahlstedt Declarations.)

 

Thus, the hearings on the instant Motions are CONTINUED, to allow Defendant to clarify service.

6

EGumball, Inc. vs Lozano

(1) Demurrer to Complaint (2) Motion to Strike (3) CMC

 

Ruling:   (1-3) Off Calendar – no hearing will be held.  (1-2) The Court rules on Defendant Gary Lozano’s demurrer and motion to strike as follows:

 

1st COA (Misappropriation of Trade Secrets):   Demurrer is overruled.

 

A cause of action for monetary relief under CUTSA may be said to consist of the following elements: (1) possession by the plaintiff of a trade secret; (2) the defendant's misappropriation of the trade secret, meaning its wrongful acquisition, disclosure, or use; and (3) resulting or threatened injury to the plaintiff. (3426.3; see id., §§ 3426.1, 3426.2.) The first of these elements is typically the most important, in the sense that until the content and nature of the claimed secret is ascertained, it will likely be impossible to intelligibly analyze the remaining issues.

(Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210, 220, disapproved of by Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310.)

 

¶7 of the Complaint pleads: “At approximately 7:11 a.m. on February 14, 2014, Lozano emailed himself an eGumball sales script (“Sales Script”) to his personal email address. eGumball maintains the confidentiality of the Sales Script by, inter alia, restricting access to its own employees. Moreover, eGumball developed the Sales Script through its own industrious efforts, and the Sales Script has given eGumball a competitive advantage over eGumball’s competitors, as the Sales Script greatly increases and improves the performance of eGumball’s sales representatives.”

 

¶7 is incorporated into the First COA for Misappropriation of Trade Secrets.  Plaintiff has pled possession of the trade secret (Sales Script) by Defendant, that he misappropriated it by emailing it to his personal email address, and will cause injury to Plaintiff (Complaint¶20).

 

Defendant argues Plaintiff has not pled adequate facts to establish the Sales Script is actually a trade secret. However, this is not the situation where Plaintiff pleads amorphous categories of documents (customer lists) and claims they are trade secrets. Here, Defendant is on notice that the Sales Script, that he emailed to himself, is what Plaintiff claims is the trade secret. Whether or not the Sales Script is actually a trade secret is something to be decided on the merits. “The courts of this state have traditionally treated the issue of whether information constitutes a trade secret as a question of fact.” (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 300.)

Furthermore, even if Plaintiff is required to track the language of Civil Code section 3426.1’s definition of trade secret in order to establish the COA, Plaintiff has done so by pleading it maintains the Sales Script’s confidentiality by restricting its access to employees and has been developed by Plaintiff’s own industrious efforts, etc.

 

2d COA (Breach of Duty of Loyalty):  Demurrer is overruled.

 

Defendant’s first argument is to the extent this COA relies on the 1st COA, it is preempted by the CUTSA.

 

Pursuant to K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, “section 3426.7, subdivision (b), preempts common law claims that are based on the same nucleus of facts as [a] misappropriation of trade secrets claim for relief.” (Id. at 958.)   Further, where a fair reading of a Complaint “compels the conclusion that each and every cause of action hinges upon the factual allegation that defendants misappropriated [Plaintiff’s] trade secrets,” the Complaint will be preempted.   (Id. at 959.)

 

 “A claim for common law or even statutory unfair competition may be preempted under CC [ ] § 3426.7 if it relies on the same facts as the misappropriation claim.” (Trade Secrets Practice in California, at p. 450, citing AccuImage Diagnostics Corp v. Terarecon, Inc., supra, 260 F.Supp.2d at p. 955.)

(K.C. Multimedia, supra, 171 Cal.App.4th at p. 961.)

Here, the 2nd COA pleads at ¶23 “Lozano breached that duty of loyalty by, inter alia, actively recruiting and soliciting other eGumball employees to quit their employment with eGumball and go to work for a direct competitor of eGumball. Lozano did so while employed by eGumball and used his position of power and influence to induce other employees to leave the employ of eGumball and join one of its competitors.”   This COA has nothing to do with the alleged misappropriation of the Sales Script. Therefore, the preemption argument fails.

 

Defendant’s second argument is that the COA fails because California is an at-will employment state and plaintiff did not owe any duty of loyalty to Defendant. However, these arguments fail, as Defendant does not establish how either of these arguments establish the failure to plead any element of the COA. Defendant cites no case suggesting that soliciting employees, while still an employee of Plaintiff, to go to work for a competitor is not a breach of the duty of loyalty.

 

3rd COA (Interference w/ Prospective Economic Advantage)Demurrer is sustained with 20 days leave to amend.  The elements of this COA are:

 

(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.

(Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.)   Here, the Court is not confident a Plaintiff’s economic relationship with its own employees qualifies as a “third party relationship.”  Further, what exactly is the future economic benefit of the employees to the Plaintiff?   Leave to amend is granted so plaintiff may explain/clarify these allegations. 

 

4th COA (Unfair Competition): Demurrer is overruled. Defendant’s sole argument is that this COA is preempted by the Trade Secrets Claim. However, this claim is based on “Lozano’s disloyal conduct of actively recruiting and soliciting other eGumball employees to quit their employment with eGumball and go to work for a direct competitor of eGumball while still employed by eGumball in a position of power and influence…” (Complaint¶33.)  The COA is not based on the same nucleus of facts as the 1st COA.  As there are no other arguments directed at this COA in the demurrer, it is overruled.

 

 

(2) Motion to Strike:  Defendant simply argues there are insufficient facts pled to warrant punitive damages.  But Plaintiff has alleged sufficient facts to plead punitive damages. If Defendant truly solicited employees to leave Plaintiff while still employed by Plaintiff, and in fact misappropriated trade secrets, then a jury may find these acts were done in conscious disregard of the rights of Plaintiff. Motion to strike is denied.

 

(3) CMC is continued to 9-24-14, Dept. C13, at 8:45 am.   

 

RP is to give notice.

 

7

Herzing vs Time Auto Group

Motion to Amend Judgment

Off calendar by the moving party.

 

8

Hoffman vs Barnes

Off calendar as moot.  1st Amended Complaint filed 7/28/2014

9

Ontiveros vs Anaheim Union

Motion to Compel Physical/Mental Examination

 

Ruling:   Off Calendar – no hearing will be held.   Motion is continued to 9-16-14, Dept. C13, at 2 pm.  The Court finds there is good cause for an IME in this case. Plaintiff concedes her mental status is at issue in this case. There has been no prior stipulation for an IME, so bringing this motion as a motion to compel and demanding cancellation fees is improper.   Counsel are ordered to meet and confer and draft the Order setting forth the time, place, manner, diagnostic tests and procedures (by name), conditions, scope, and nature of the examination. The Order shall be filed with the Court by 9-8-14, at

4 pm and any disputes regarding same shall be set forth in a 1 ½ page brief to be reviewed by the Court, also to be filed by 9-8-14, at 4 pm.

 

Defendants are not entitled to demand an IME without court approval and plaintiff is not obligated to undergo an independent mental exam unless ordered by the court.  (Code Civ. Proc., §2032.320.) Here, Defendants approach to the issue puts the cart before the horse. They should have first filed this motion, not sent a notice for IME.   The correspondence between counsel relating to the IME cannot be construed as a stipulation to allow an IME.  Accordingly, the request for cancellation fees is inappropriate. 

 

The Discovery Act provides that any party may obtain discovery, subject to the restrictions set forth in section 2019, by means of a physical or mental examination of (1) a party to the action ... in any action in which the mental or physical condition ... of that party ... is in controversy in the action.”  Per Code of Civil Procedure section 2032.320(a), “If any party desires to obtain discovery ... by a mental examination, the party shall obtain leave of court. The motion for the examination shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.... [¶] The court shall grant a motion for a physical or mental examination only for good cause shown. If a party stipulates that (1) no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed, and (2) no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages, a mental examination of a person for whose personal injuries a recovery is being sought shall not be ordered except on a showing of exceptional circumstances. The order granting a physical or mental examination shall specify the person or persons who may perform the examination, and the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.”

 

A party who chooses to allege that he has mental and emotional difficulties cannot deny his mental state is in controversy.  (Vinson v. Superior Court (1987) 43 Cal.3d 330, 337.)   Here, Plaintiff’s 2nd COA is for IIED, where she states she has suffered severe emotional distress, become mentally upset, emotionally distressed, and aggravated as a result of Defendants’ action.  (SAC ¶¶42, 43.)  Plaintiff has also testified at deposition that she is continually seeking treatment for the alleged emotional distress and mental anguish.   (Declaration of Blumenfeld ¶6.)  Indeed, Plaintiff admits there is good cause for an IME given the 2nd COA, but it should be limited to certain parameters. Of course, there is good cause to order an IME.  Plaintiff, unfortunately, provides absolutely no assistance as to what guidelines or parameters would work for her.

 

Generally speaking, when a MP files a motion to obtain an order for an IME, the notice of motion would state the time, place, identity and specialty of the examiner and the “manner, conditions, scope and nature of the examination.”  (Code Civ. Proc., §2032.210(b).)  Here because MP jumped the procedural gun, the notice of motion does not comply with section 2032.210(b), and the Notice for IME merely states:  

 

          “The examination and interview will be conducted by Glenn Lipson, Ph.D., a doctor of psychology.

 

          The scope of the examination will include a psychological interview and testing.   The examination will not include any diagnostic test or procedure that is painful, protracted, or intrusive to Plaintiff.  The examination will be audio-taped.”

 

(See Exh. B attached to the Declaration of Blumenfeld.)   The parties are ordered to engage in a face to face meet and confer and discuss the availability of the doctor, time and place for exam, and the diagnostic tests and procedures to be used in the exam.  (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260.)  Thereafter, they should draft, working together, the Order for the IME and submit it to the Court.  Code of Civil Procedure section 2032.320 provides,

(d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.

 

10

Pacific Western Bank vs Mullins

Stipulation to Continue submitted.

11

Torres vs Merical, Inc.

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

 

Tentative Ruling: (1) Motion to Compel Arbitration is GRANTED.  Plaintiff Wanda Torres is ordered to arbitrate her claims against Defendant KIMCO Staffing Services, Inc., per Code of Civil Procedure section 1281.2.

 

Defendant KIMCO provides, as Exhibit “B” to the Declaration of Ms. Tania Torres (the Human Resource Director at KIMCO) an Arbitration Agreement electronically signed by Plaintiff Wanda Torres.   The Court notes the electronic signature is appropriate pursuant to Civil Code section 1633.7 and raises no issues concerning enforceability. [“A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.”  (Civ. Code, §1633.7(a).)   Defendant also provides the Declaration of Ms. Burton (Operations Manager at KIMCO) who testifies that Plaintiff alone had the ability to electronically sign documents in her name. (See ¶3-¶6 and ¶14 of Burton Dec.). Plaintiff does not contest this evidence or the validity of her electronic signature.

 

Moreover, Exhibit “B” of Ms. Torres’ Declaration evidences an express agreement to arbitrate controversies arising out of Plaintiff’s employment, as between Plaintiff and Defendant KIMCO. (See Exhibit “B”.)   Significantly, Plaintiff does not dispute the existence or validity of this document; rather, Plaintiff concedes: "Admittedly, the arbitration agreement between Kimco and Torres is most likely enforceable.” (Opposition: 5:16-17.)  

 

Finally, Plaintiff does not contest that the subject claims fall within the scope of the Arbitration Agreement.   Indeed, as the Agreement provides for arbitration of all claims arising from employment with KIMCO, Plaintiff’s claims for Wrongful Termination and Harassment are necessarily included within this scope.

 

Based on all of the above, an enforceable Arbitration Agreement exists between KIMCO and Plaintiff, which applies to the instant Complaint and entitles KIMCO to an order compelling Arbitration. (Code  Civ. Proc., §1281.2.)   

 

Plaintiff’s sole basis for objecting to arbitration is the assertion that Defendant MeriCal is not a party to the Arbitration Agreement and, thus Code of Civil Procedure section 1281.2(c) entitles the Court to decline to enforce the Agreement.   For the reasons stated below as to this Court’s ruling on Defendant MeriCal’s Joinder, this argument fails.   The action against Defendant KIMCO is stayed, pursuant to Code of Civil Procedure section 1281.4.

 

(2) Joinder: Defendant MeriCal, Inc.’s Joinder to the Motion to Compel Arbitration is GRANTED.  Plaintiff Wanda Torres is ordered to arbitrate her claims against Defendant MeriCal, Inc.

 

Plaintiff asserts the claims raised against Defendant MeriCal constitute “third-party” claims within the meaning of Code of Civil Procedure section 1281.2(c), such that the Court may exercise discretion and decline to enforce the Arbitration Agreement; however, this argument fails:

 

First, “[t]he term ‘third party’ for purposes of Code of Civil Procedure section 1281.2 must be construed to mean a party that is not bound by the arbitration agreement.” (Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1407.)   “The exception thus does not apply when all defendants, including a nonsignatory to the arbitration agreement, have the right to enforce the arbitration provision against a signatory plaintiff.” (Id. at 1405; See also Thomas v. Westlake (2012) 204 Cal.App.4th 605, 612.)

 

Indeed, where the alleged “third party” has the right to enforce the Arbitration Agreement, a Court which denies arbitration based on Code of Civil Procedure section 1281.2 (c) commits error. (RN Solution v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511, 1520.)  Additionally, pursuant to Rowe v. Exline (2007) 153 Cal.App.4th 1276, “a signatory plaintiff who sues on a written contract containing an arbitration clause may be estopped from denying arbitration if he sues nonsignatories as related or affiliated persons with the signatory entity.” (Id. at 1287.)   “The equitable estoppel doctrine applies when a party has signed an agreement to arbitrate but attempts to avoid arbitration by suing nonsignatory defendants for claims that are based on the same facts and are inherently inseparable from arbitrable claims against signatory defendants.” (Id.)

 

As explained by JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222:

 

Thus, a nonsignatory defendant may compel a signatory plaintiff to arbitrate under the doctrine of equitable estoppel. For the doctrine to apply, “the claims plaintiff asserts against the nonsignatory must be dependent upon, or founded in and inextricably intertwined with, the underlying contractual obligations of the agreement containing the arbitration clause.”

 

(Id. at 1238; See also Turtle Ridge Media Group, Inc. v. Pacific Bell Directory (2006) 140 Cal.App.4th 828, 833.)   Further, as explained by the Fourth District, Division 3, in Metaclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, “the equitable estoppel doctrine applies when a party has signed an agreement to arbitrate but attempts to avoid arbitration by suing nonsignatory defendants for claims that are ‘based on the same facts and inherently inseparable from arbitrable claims against signatory defendants.” (Id. at 1713.)

 

Here, Plaintiff concedes the claims are intertwined.   Plaintiff states: "While Torres is a party to an arbitration agreement with Kimco, her claims are intertwined with the claims against Merical.” (Opposition: 11:25-26.)   “If a separate trial and arbitration is conducted, it will essentially require the same facts be established twice.” (Opposition: 11:26-27.)  Finally, a brief review of the Complaint confirms all claims are generally asserted against “Defendants,” without the inclusion of separate factual allegations.

 

Significantly, while Plaintiff attempts to argue that the connection between the claims requires all claims proceed in Court, Plaintiff wholly ignores the application of equitable estoppel.

 

The action against Defendant MeriCal, Inc. is stayed, per Code of Civil Procedure section1281.4.

 

MPs are to give notice.