Courthouse News Service v. Michael Planet

Filing 12

EX PARTE APPLICATION to Continue Hearing on Plaintiff's Motion for Preliminary Injunction from November 7, 2011 to January 17, 2012 filed by Defendant Michael Planet. (Attachments: #1 Exhibit, #2 Proposed Order)(Naeve, Robert)

1
2
3
4
5
6
7
8

Robert A. Naeve (State Bar No. 106095)
[e-mail]
Erica L. Reilley (State Bar No. 211615)
[e-mail]
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, California 92612
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
MICHAEL PLANET, IN HIS OFFICIAL
CAPACITY AS COURT EXECUTIVE
OFFICER/CLERK OF THE VENTURA
COUNTY SUPERIOR COURT

9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11
12
13

COURTHOUSE NEWS SERVICE,
Plaintiff,

14
15
16
17
18
19
20

v.
MICHAEL PLANET, IN HIS
OFFICIAL CAPACITY AS COURT
EXECUTIVE OFFICER/CLERK OF
THE VENTURA COUNTY
SUPERIOR COURT,
Defendant.

Case No. CV11-08083 R (MANx)
Assigned for all purposes to
Hon. Manuel L. Real
EX PARTE APPLICATION TO:
CONTINUE HEARING ON
PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION
MEMORANDUM OF POINTS
AND AUTHORITIES AND
DECLARATION OF ERICA L.
REILLEY IN SUPPORT
THEREOF

21
22
23
24

([Proposed] Order Continuing
Time In Which To Respond To
Complaint And Hearing On
Motion For Preliminary
Injunction Submitted
Concurrently)

25
26
27
28
Ex Parte Application
Case No. CV 11-08083 R (MANx)

1
2

EX PARTE APPLICATION
I.

3

Nature Of This Action.
By this action, Plaintiff Courthouse News Service (“Plaintiff”) seeks broad

4

declaratory and injunctive relief against the Ventura County Superior Court, and

5

specifically, its Executive Officer and Clerk of the Court, Michael Planet

6

(“Defendant”), claiming that the Court’s alleged failure to provide Plaintiff with

7

virtually instant access to newly filed unlimited civil complaints as they arrive at

8

the courthouse amounts to a violation of Plaintiff’s First and Fourth Amendment

9

rights. Specifically, Plaintiff complains that increasing delays and an alleged

10

“policy” that Plaintiff (and every other member of the public) cannot have access to

11

new filings until the requisite document processing is completed has resulted in

12

new filings being “as good as sealed.” (Compl., at 3.)

13

Despite Plaintiff’s on-going communications with Defendant—in which

14

Defendant explained that same-day access to all newly filed unlimited civil

15

complaints was not possible in all situations due to serious State resource shortages,

16

ongoing court budget reductions, and the priorities of other matters, including the

17

sometimes-urgent needs of litigants—Plaintiff filed this action on September 29,

18

2011, and simultaneously filed a Motion for Preliminary Injunction noticed for

19

hearing on November 7, 2011. Plaintiff’s complaint includes two claims arising

20

under 42 U.S.C. § 1983, and a third claim for alleged violation of California Rule

21

of Court 2.550 (regarding sealing of records).

22
23
24
25
26
27

II.

Requested Relief.
Defendant’s responsive pleading to Plaintiff’s Complaint is due on October

25, 2011 (or no earlier than October 20, as there is a dispute regarding when service
on Defendant was effective). Yet Defendant’s opposition to Plaintiff’s Motion for
Preliminary Injunction currently is due before that, on October 17, 2011.

28
- 1-

Ex Parte Application
Case No. CV 11-08083 R (MANx)

1

Defendant intends to respond to Plaintiff’s Complaint by way of a motion to

2

dismiss raising jurisdictional, justiciability and immunity issues, along with

3

arguments that certain causes of action fail to state claims upon which relief may be

4

granted. Those arguments are likely to render the entire Complaint unsettled, if not

5

untenable. To give the parties and the Court time to consider the viability of

6

Plaintiff’s Complaint and then refocus on whatever claims might validly remain

7

prior to hearing on Plaintiff’s Motion for Preliminary Injunction, Defendant hereby

8

applies ex parte, pursuant to Local Rule 7-19, for an order granting the following

9

relief:

10
11

(1)

filed on or before October 25, 2011.

12
13
14
15

That Defendant’s motion to dismiss or other responsive pleading be

(2)

That this Court take off calendar Plaintiff’s Motion for Preliminary

Injunction, with an option that it be re-filed two weeks after the date that Plaintiff’s
operative complaint becomes settled.
(2)

16

Or, in the alternative, that this Court order that Plaintiff’s Motion for

17

Preliminary Injunction not be heard until January 17, 2012, with briefing on the

18

Motion continued in accordance with Local Rule 7-11.

19

Defendant takes the allegations in Plaintiff’s Complaint seriously, and wants

20

to give them the appropriate consideration and analysis. Defendant will not ask for

21

any further extensions of time in connection with these motions.

22

III.

Reason For Requested Relief.

23

Due to the simultaneous filing of Plaintiff’s Complaint and Motion for

24

Preliminary Injunction, under the current schedule, Defendant’s responsive motion

25

to dismiss will not be heard until after the Court has reached the merits of

26

Plaintiff’s Motion for Preliminary Injunction. This order puts the cart before the

27

horse, forcing the Court to reach substantive issues of the litigation before deciding

28
-2-

Ex Parte Application
Case No. CV 11-08083 R (MANx)

1

threshold jurisdictional and justiciability issues. Accordingly, Defendant seeks to

2

continue the hearing on Plaintiff’s Motion for Preliminary Injunction for the

3

prudent and appropriate purpose of providing the Court with an opportunity to

4

consider those threshold issues before the Court and parties invest additional time

5

and resources briefing the merits of Plaintiff’s Motion for Preliminary Injunction.

6

January 17, 2012, is the first date this Court is available to hear the Motion that

7

would permit the parties not to work-up and brief the Motion until after hearing and

8

resolution of Defendant’s motion to dismiss.

9

IV.

Defendant Has Complied With Local Rules 7-19, 7-19.1 And The

10

Court’s Standing Rules For Ex Parte Relief.

11

A.

12

On Friday, October 7, 2011, Defendant’s counsel contacted Plaintiff’s

13

counsel via telephonic voicemail and e-mail to propose that the parties stipulate to

14

schedule that would permit Defendant’s motion to dismiss to be heard and resolved

15

prior to Plaintiff’s Motion for Preliminary Injunction. (Reilley Decl., ¶ 2.) In both

16

October 7 communications, Defendant’s counsel notified Plaintiff’s counsel that, if

17

Plaintiff would not stipulate, Defendant intended to apply ex parte for such relief.

18

(Id., ¶ 3.) Plaintiff’s counsel stated they would not agree to such a stipulation, but

19

offered to talk further on Monday, October 10, 2011. (Id., ¶ 4.)

20
21
22
23
24
25
26
27

Defense Counsel Has Provided Notice To Plaintiff’s Counsel.

On Monday, October 10, 2011, counsel for both parties talked by phone and
could not reach agreement on the scheduling of Defendant’s motion to dismiss and
Plaintiff’s Motion for Preliminary Injunction. During the call, Defendant’s counsel
gave notice that Defendant would file this Ex Parte Application later that day.
Plaintiff’s counsel stated they would oppose the Application, at which time
Defendant’s counsel informed them that Plaintiff would have twenty-four (24)
hours from receipt of the papers to oppose the Application. (Id., ¶ 5.)

28
-3-

Ex Parte Application
Case No. CV 11-08083 R (MANx)

1

B.

2

Defendant is informed and believes that the contact information for

3
4
5
6
7
8
9
10
11

Contact Information for Plaintiff’s Counsel

Plaintiff’s counsel is as follows:
Rachel Matteo-Boehm (SBN 195492)
[e-mail]
David Greene (SBN 160107)
[e-mail]
Leila C. Knox (SBN 245999)
[e-mail]
HOLME ROBERTS & OWEN LLP
560 Mission Street, Suite 250
San Francisco, CA 94105-2994
Telephone: [phone]
Facsimile: [phone]

12
13
14

Dated: October 10, 2011

Respectfully submitted,
JONES DAY

15
16
17
18
19
20

By: /s/ Robert A. Naeve
Robert A. Naeve
Attorneys for Defendant
MICHAEL PLANET, IN HIS OFFICIAL
CAPACITY AS COURT EXECUTIVE
OFFICER/CLERK OF THE VENTURA
COUNTY SUPERIOR COURT

21
22
23
24
25
26
27
28
-4-

Ex Parte Application
Case No. CV 11-08083 R (MANx)

1
2

MEMORANDUM OF POINTS AND AUTHORITIES
I.

This Court Has Discretion To Continue The Hearing On Plaintiff’s

3

Motion For Preliminary Injunction.

4

This Court has the discretion to extend the time in which to file a motion to

5

dismiss, and to continue a hearing on a motion for preliminary injunction, on a

6

showing of good cause. Fed. R. Civ. P. 6(b); Quintero Family Trust v. OneWest

7

Bank, F.S.B., No. 09-CV-1561, 2009 U.S. Dist. LEXIS 115765, (S.D. Cal. Dec. 11,

8

2009) (“The matter of whether to grant a continuance is traditionally within the

9

discretion of the court.” (citing Avery v. Alabama, 308 U.S. 444, 446, 60 S. Ct. 321,

10

84 L. Ed. 377 (1940).). Here, Defendant requests that the Court continue the

11

hearing on Plaintiff’s Motion for Preliminary Injunction indefinitely (and subject to

12

re-filing once Plaintiff’s pleadings are settled) or no earlier than January 17, 2012,

13

so that Defendant’s motion to dismiss can be heard and resolved prior to full

14

briefing on, and the Court’s merits resolution of, Plaintiff’s Motion for Preliminary

15

Injunction.

16

II.

17

Defendant’s Requested Relief Will Conserve Resources.
Resolving Defendant’s motion to dismiss in advance of the hearing on

18

Plaintiff’s Motion for Preliminary Injunction is both logical and economical. The

19

motion to dismiss will address issues that are likely to resolve this action in its

20

entirety. For example, Defendant anticipates that his motion will raise various

21

jurisdictional, justiciability, and immunity issues, and will also argue that certain

22

causes of action fail to state claims upon which relief may be granted. The exact

23

contours of these arguments are still being considered and evaluated.

24
25
26
27
28

By prioritizing Defendant’s threshold challenges, the Court may avoid
having to delve into the complex constitutional issues and injunctive relief raised by
the merits of Plaintiff’s First Amendment challenges. Moreover, continuing the
hearing on Plaintiff’s Motion for Preliminary Injunction indefinitely (and no earlier
- 5-

Ex Parte Application
Case No. CV 11-08083 R (MANx)

1

than January 17, 2012) will allow the Court to resolve the motion to dismiss before

2

the parties and this Court expend resources briefing and considering what may

3

otherwise be a mooted motion. If this lawsuit remains viable after the Court has

4

ruled on Defendant’s motion to dismiss and the pleadings have settled, the parties

5

can then focus on the remaining briefing for the Preliminary Injunction Motion.

6

III.

Defendant’s Requested Relief Is Consistent With Established Law

7

Requiring That Certain Issues Be Determined At The Threshold.

8

Beyond waste, there are substantive legal reasons to decide Defendant’s

9
10
11
12
13
14
15
16
17
18

motion to dismiss first.
To start, Plaintiff’s requested injunctive and declaratory relief, including its
Motion for Preliminary Injunction itself, necessarily implicates a myriad of
federalism concerns, including interference in administration of state judicial
system, dictating state and local budget priorities, and daily monitoring of the
Ventura County Superior Court to ensure the court remains compliant with
providing same-day access. Accordingly, at a minimum, this Court should hear and
consider whether equitable abstention is appropriate before reaching the merits of
Plaintiff’s requested preliminary injunction.

19

Moreover, Defendant’s motion to dismiss likely will raise immunity and

20

ripeness issues will determine whether the Court has subject matter jurisdiction

21

over the case. See, e.g., Lee v. Oregon, 107 F.3d 1382, 1387-88 (9th Cir. 1997)

22

(“In order to ensure that a federal court's Article III power has been properly

23

invoked, the courts have developed several doctrines, including standing, mootness,

24

and ripeness, each of which imposes a different requirement on the substance of a

25

plaintiff's claim.”). While Plaintiff no doubt will argue that the issues raised in its

26

Motion for Preliminary Injunction are important (and Defendant is not disputing

27

that), they must give way to the questions of jurisdiction, justiciability and

28

immunity that will be raised in Defendant’s motion to dismiss.
-6-

Ex Parte Application
Case No. CV 11-08083 R (MANx)

1

IV.

Defendant’s Requested Relief Poses No Prejudice To Plaintiff.

2

Plaintiff has insisted that their Motion for Preliminary Injunction be heard

3

first, before Defendant’s motion to dismiss. (Declaration of Erica L. Reilley, ¶ 4

4

[hereinafter “Reilley Decl.”].) As set forth above, neither judicial economy nor the

5

law favor such an approach. Moreover, Plaintiff cannot demonstrate any particular

6

prejudice that would result from granting Defendant’s requested relief.

7

A.

8

While Plaintiff Motion for Preliminary Injunction makes much of the alleged

9

“irreparable harm” that will be suffered if Defendant’s policies are not preliminarily

10

enjoined, Plaintiff’s actions reveal there is no actual urgency. The alleged “delays”

11

in access to newly filed unlimited civil complaints about which Plaintiff complains

12

dates back to early 2008, and the specific policy Plaintiff seeks to enjoin was

13

disclosed to Plaintiff in July 2011. (Declaration of Julianna Krolak ISO Mot. for

14

Preliminary Injunction, ¶ 5 (“Beginning in early 2008, media access at Ventura

15

County Superior began to deteriorate on a number of fronts.”); Mot. for Preliminary

16

Injunction, at 18:3.) Nevertheless, Plaintiff did not file this action or bring its

17

motion until September 29, 2011. Moreover, once Plaintiff finally did move to

18

enjoin the policy, Plaintiff did not seek to expedite hearing on the motion or

19

otherwise seek interim relief (granted, no facts would warrant a temporary

20

restraining order in any event). At bottom, the history of the conduct complained of

21

and Plaintiff’s actions to date do not demonstrate any compelling need to waste

22

already-precious State resources by requiring briefing on the substantive issues

23

simultaneous with, and before decision on, various threshold legal issues that may

24

remove this Court’s jurisdiction to hear those substantive issues in the first place.

There Is No Urgency To Plaintiff’s Motion.

25
26
27
28
-7-

Ex Parte Application
Case No. CV 11-08083 R (MANx)

1

B.

2

Defendant’s Requested Relief Does Not Shorten The Briefing
Schedule.

3

Defendant’s requested relief does not seek to shorten the notice requirements

4

or briefing schedule established by Local Rules 6-1, 7-9 and 7-10. To the contrary,

5

Defendant’s motion to dismiss would be due no later than October 25, 2011, and

6

would comply with the full 28-day notice period. By taking off calendar the

7

hearing on Plaintiff’s Motion for Preliminary Injunction—or scheduling it no

8

earlier than January 17, 2012 (the first available Court date that would permit the

9

parties not to work-up and brief the Motion until after Plaintiff’s motion to dismiss

10

is resolved)—the parties would have more than sufficient notice and time to brief

11

the issues raised. No prejudice to Plaintiff would result from granting Defendant’s

12

requested relief.

13

V.

14
15

CONCLUSION
For the foregoing reasons, Defendant respectfully requests his Ex Parte

Application be granted as requested.

16
17
18

Dated: October 10, 2011

Respectfully submitted,
JONES DAY

19
20
21
22
23
24

By: /s/ Robert A. Naeve
Robert A. Naeve
Attorneys for Defendant
MICHAEL PLANET, IN HIS OFFICIAL
CAPACITY AS COURT EXECUTIVE
OFFICER/CLERK OF THE VENTURA
COUNTY SUPERIOR COURT

25
26
27
28
-8-

Ex Parte Application
Case No. CV 11-08083 R (MANx)

1
2
3
4
5
6
7
8
9
10
11
12
13

DECLARATION OF ERICA L. REILLEY
I, Erica L. Reilley, declare as follows:
1.

I am an attorney at law, duly admitted to practice before all Courts of

the State of California and before this Court, and am a partner with the law firm of
Jones Day, attorneys of record for Defendant Michael Planet, in his official
capacity as Court Executive Officer/Clerk of the Ventura County Superior Court. I
make this declaration in support of the Defendant’s Ex Parte Application to
Continue Hearing on Plaintiff’s Motion for Preliminary Injunction. As one of the
attorneys responsible for the defense of this action, I have personal knowledge of
the facts stated in this Declaration and if called as a witness I could and would
testify competently to them.
2.

On October 7, 2011, I telephoned Rachel Matteo-Boehm, of the Holme

14

Roberts & Owen LLP law firm, to request a stipulation to continue the time to

15

respond to Plaintiff’s Complaint and to continue the hearing on Plaintiff’s Motion

16

for Preliminary Injunction to a date after Defendant’s motion to dismiss would be

17

resolved. Specifically, I left a voicemail at or around 4:10 p.m., and followed that

18

voicemail up with an email minutes later (that cc’d David Green and Leila Knox, as

19

well), a copy of which is attached hereto as Exhibit A.

20

3.

In both my October 7 voicemail and email, I informed Ms. Matteo-

21

Boehm that if Plaintiff would not stipulate to the continuance, Defendant intended

22

to apply ex parte for an order granting such relief.

23

4.

On October 7, 2011, at approximately 5:18 p.m., Ms. Matteo-Boehm

24

e-mailed me back and stated that Plaintiff would not stipulate to continue the

25

hearing to a date beyond which Defendant’s motion to dismiss would be resolved,

26

but that we could discuss the matter further on Monday, October 10, 2011. A copy

27

of Ms. Matteo-Boehm’s e-mail is attached hereto as Exhibit B.

28
- 9-

Ex Parte Application
Case No. CV 11-08083 R (MANx)

1

5.

On October 10, 2011, at 10:30 a.m., I telephoned Ms. Matteo-Boehm

2

and Mr. David Greene to discuss the matter further. During the call, we were not

3

able to reach agreement on an appropriate stipulation, and I gave notice to Ms.

4

Matteo-Boehm and Mr. Greene that Defendant would file this Ex Parte Application

5

later that day seeking a continuance of the hearing on Plaintiff’s Motion for

6

Preliminary Injunction. Ms. Matteo-Boehm and Mr. Green stated that Plaintiff

7

intended to oppose Defendant’s Application. I informed Ms. Matteo-Boehm and

8

Mr. Green that Plaintiff would have twenty-four (24) hours from receipt of the

9

papers to file an opposition. I followed up that phone call with an email stating the

10
11

same, a copy of which is attached as Exhibit C.
6.

Shortly thereafter, Ms. Matteo-Boehm responded to my email, a copy

12

of which is attached as Exhibit D. She proposed a schedule that would provide for

13

simultaneous hearing on November 21, 2011, of Defendant’s motion to dismiss and

14

Plaintiff’s Motion for Preliminary Injunction.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

7.

Although Defendant appreciates the brief extension Plaintiff has

offered (and would consider it if this Application is denied), it does not address the
waste of resources that would result where the Court has not yet had an opportunity
to rule on the propriety of its jurisdiction over, and viability of, the underlying
Complaint prior to hearing the Motion for Preliminary Injunction. By prioritizing
these threshold issues, this Court and the parties need not expend limited resources
on the complex constitutional issues and injunctive relief raised by the merits of
Plaintiff’s First Amendment challenges prior to the pleadings being settled.
I declare under penalty of perjury under the laws of the United States and the
State of California that the foregoing is true and correct.
Executed on October 10, 2011, at Los Angeles, California.
/s/ Erica L. Reilley
Erica L. Reilley
LAI-3150709

- 10 -

Ex Parte Application
Case No. CV 11-08083 R (MANx)