Spielholz v. Los Angeles Telephone Cellular Co.

Filed 6/23/06 Spielholz v. Los Angeles Telephone Cellular Co. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Carolyn B. Kuhl, Judge. Remanded with directions.

Gibson, Dunn & Crutcher, Steven E. Sletten, Mark E. Weber and Carol M. Silberberg; Mayer, Brown, Rowe & Maw, Donald M. Falk, Sarah Weinstein and Evan M. Tager for Defendants and Appellants.

Lerach Coughlin Stoia Geller Rudman & Robbins, Pamela M. Parker, Reed R. Kathrein, Jeffrey D. Friedman and Shana E. Scarlett; Ronald F. Hoffman; Lieff, Cabraser, Heimann & Bernstein, Elizabeth J. Cabraser, William Bernstein and Steven M. Tindall for Plaintiffs and Respondents.

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Defendants in a false advertising action appeal from the denial of their motion to compel arbitration. We sought additional briefing on the issue of whether this case should be dismissed as moot, on the basis that the operative pleading does not seek relief against any entity against whom injunctive relief could be granted. Concluding the operative complaint is inadequate, and that plaintiffs have chosen to stand on that complaint rather than accept the delays associated with proceeding on a proper complaint, we remand with directions to dismiss the case.

FACTUAL AND PROCEDURAL BACKGROUND

This case was initially filed in 1998. The initial plaintiff was Marcia Spielholz, who stated a claim against Los Angeles Cellular Telephone Company (â€