Courthouse News Service v. Michael Planet
Filing
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OPPOSITION to EX PARTE APPLICATION to Continue Hearing on Plaintiff's Motion for Preliminary Injunction from November 7, 2011 to January 17, 2012 #12 filed by Plaintiff Courthouse News Service. (Attachments: #1 Proposed Order)(Matteo-Boehm, Rachel)
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Rachel Matteo-Boehm (SBN 195492)
rachel.matteo-boehm@hro.com
David Greene (SBN 160107)
david.greene@hro.com
Leila C. Knox (SBN 245999)
leila.knox@hro.com
HOLME ROBERTS & OWEN LLP
560 Mission Street, Suite 250
San Francisco, CA 94105-2994
Telephone: (415) 268-2000
Facsimile: (415) 268-1999
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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Courthouse News Service,
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Plaintiff,
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v.
Michael D. Planet, in his official capacity
as Court Executive Officer/Clerk of the
Ventura County Superior Court.
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Defendant.
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CASE NO. CV11-08083 R (MANx)
OPPOSITION TO DEFENDANT’S
EX PARTE APPLICATION FOR
ORDER CONTINUING HEARING
ON MOTION FOR PRELIMINARY
INJUNCTION
Courtroom: G-8 (2nd Floor)
The Hon. Manuel L. Real
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Plaintiff Courthouse News Service (“Courthouse News”) hereby opposes
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Defendant’s Ex Parte Application for an Order Continuing Courthouse News
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Service’s Motion for Preliminary Injunction currently set for hearing on November 7,
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2011. Courthouse News is certainly willing to grant Defendant a reasonable extension
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OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION
FOR ORDER CONTINUING HEARING ON MOTION FOR
PRELIMINARY INJUNCTION
#74596 v1 saf
Case No. CV11-08083R (MANx)
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of time in which to prepare its opposition papers and is willing to coordinate a briefing
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schedule so that Defendant’s planned Motion to Dismiss can be heard at the same time
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as the Motion for Preliminary Injunction, thus providing an efficiency to both the
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parties and the Court. And Courthouse News is further willing to extend the time for
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Defendant to answer or otherwise respond to the Complaint so that Defendant will not
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be required to file a Motion to Dismiss while the Motion for Preliminary Injunction is
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pending. But given the serious and ongoing deprivation of First Amendment rights
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that is the basis of the lawsuit, Courthouse News opposes Plaintiff’s request that the
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Motion for Preliminary Injunction be delayed for more than two months.
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I.
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NATURE OF THE ACTION
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By this action, Courthouse News contests the practice of the Court Executive
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Officer/Clerk of the Ventura County Superior Court, Defendant Michael D. Planet, of
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denying Courthouse News Service access to new civil complaints on the same day
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those records have been filed with the court. Defendant’s characterization of
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Courthouse News as seeking “virtually instant access” is inaccurate. As set forth in
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detail in Courthouse News’ Motion for Preliminary Injunction and supporting papers,
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Courthouse News Service is seeking only that access which has routinely and
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traditionally been granted to the press in other state and federal courts.
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Under current conditions at Ventura Superior, delays in access range from one
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day to several weeks. As set forth in the Complaint and the papers supporting
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Courthouse News Service’s Motion for Preliminary Injunction, Defendant has taken
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the position that he will not provide access to these new complaints until they are
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subjected to “the requisite processing.” Courthouse News’ Motion for Preliminary
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Injunction seeks an order preventing Defendant from enforcing this policy that has
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resulted in these delays in access.
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OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION
FOR ORDER CONTINUING HEARING ON MOTION FOR
PRELIMINARY INJUNCTION
#74596 v1 saf
Case No. CV11-08083R (MANx)
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II.
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COURTHOUSE NEWS’ PROPOSED ACCOMMODATION TO DEFENDANT
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On September 29, 2011, Courthouse News Service filed and served its
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Complaint in this matter. At the same time, Courthouse News filed and served a
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Motion for Preliminary Injunction and noticed the hearing on that motion for
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November 7, 2011. On the afternoon of Friday, October 7, 2001, counsel for
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Defendant notified Courthouse News’ counsel that it was representing Defendant and
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indicated that it wished to discuss certain scheduling matters relating to Defendant’s
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response to the Complaint and Motion for Preliminary Injunction.
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On the morning of Monday, October 10, 2011, counsel for the parties spoke by
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telephone. During that call, Defendant’s counsel requested that Courthouse News
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agree to continue the hearing and all briefing on its Motion for Preliminary Injunction
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until after the Court could hear and decide a Motion to Dismiss that Defendant
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intended to bring. Defendant’s counsel proposed that the Motion for Preliminary
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Injunction not be heard until January 17, 2011, a delay of almost two-and-a-half
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months.
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Courthouse News’ counsel stated its objection to Defendant’s proposal,
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explaining that the ongoing violation of Courthouse News Service’s and the public’s
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First Amendment rights was substantial and the proposed delay was thus
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unacceptable. Counsel, however, indicated that it was willing to work with Defendant
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to devise a calendar that would give Defendant more time to file its opposition to the
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Motion for Preliminary Injunction, as well as allowing it time to notice a hearing on
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its planned Motion to Dismiss for the same date as the Motion for Preliminary
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Injunction. By follow-up email, counsel proposed the following schedule:
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October 31, 2011:
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November 7, 2011: Reply papers (for both motions) due
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November 21, 2011: Hearing (for both motions).
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Opposition papers (to both motions) due
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OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION
FOR ORDER CONTINUING HEARING ON MOTION FOR
PRELIMINARY INJUNCTION
#74596 v1 saf
Case No. CV11-08083R (MANx)
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Declaration of Erica L. Reilley in Support of Defendant’s Ex Parte Application, Exh.
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D.1 Under this schedule, the last day for Defendant to file a motion to dismiss would
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be October 24, 2011.
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Courthouse News believes that this proposal allows Defendant more time to
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prepare its opposition papers, without unduly delaying the Court’s evaluation of the
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necessity and appropriateness of preliminary relief. Moreover, this proposal creates
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the efficiency of having the motions heard on the same day.
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Defendant rejected Courthouse News’ proposal and thus moved this Court ex
parte to continue the Motion for Preliminary Injunction.2
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III.
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DEFENDANT’S REQUEST FOR A CONTINUANCE SHOULD BE DENIED
BECAUSE IT IS UNNECESSARY AND WASTEFUL OF THE COURT’S AND
THE PARTIES’ RESOURCES
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This Court should reject Defendant’s ex parte application for a continuance
because it is both unnecessary and wasteful. Defendant’s argument to the contrary, in
which it contends that the consideration of its motion to dismiss first will be more
efficient, requires this Court to assume that Defendant’s motion will be successful. As
is evident from Defendant’s papers, however, Defendant itself has not even fully
considered the specific grounds it will raise for dismissal.
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Any defenses that Defendant will eventually formulate can be properly raised in
its opposition to the Motion for Preliminary Injunction as part of proving an absence
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Defendant’s statement that Courthouse News insisted that its Motion for Preliminary
Injunction be heard before Defendant’s motion to dismiss is incorrect, as Defendant’s
own declaration makes clear. Reilley Decl., Exhs. B, D.
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Because Defendant rejected this proposal, Courthouse News has not yet cleared its
suggested November 21 hearing date with the court clerk. However, according to the
court’s web site, this date is not closed.
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OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION
FOR ORDER CONTINUING HEARING ON MOTION FOR
PRELIMINARY INJUNCTION
#74596 v1 saf
Case No. CV11-08083R (MANx)
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of a likelihood of success on the merits. There is no reason to have a separate motion
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and a separate proceeding.
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Even if Defendant does want to bring a separate motion to dismiss, there is no
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reason to delay the Court’s consideration of the Motion for Preliminary Injunction in
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the way Defendant proposes. Defendant will not waive any defense by opposing the
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Motion for Preliminary Injunction. Indeed, from Defendant’s brief description of the
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grounds of its anticipated motion to dismiss, it is likely that the motion to dismiss will
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touch on issues pertinent to the Motion for Preliminary Injunction, including the
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contours and origins of Defendant’s “requisite processing” policy that results in the
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denial of access to court records. And as indicated above, under the proposal made by
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Courthouse News that Defendant has rejected, Defendant could bring a separate
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motion to dismiss to be heard on the same day as the Motion for Preliminary
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Injunction.
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IV.
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COURTHOUSE NEWS SERVICE AND ITS SUBSCRIBERS SUFFER AN
ONGOING VIOLATION OF FIRST AMENDMENT RIGHTS AS LONG AS
DEFENDANT’S ACCESS POLICY IS NOT ENJOINED
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Defendant’s request for a continuance should also be denied because it would
delay the Court’s consideration of injunctive relief to address a continuing deprivation
of First Amendment rights. As set forth in detail in the papers supporting Courthouse
News’ Motion for Preliminary Injunction, Defendant’s policy of not permitting the
media to review those records until “the requisite processing has been completed” has
resulted in a situation in which new complaints are effectively sealed for days or even
weeks after they are filed. Should this Court grant Defendant’s ex parte application
and ultimately find Courthouse News’ Motion for Preliminary Injunction warranted,
the resultant delay will have caused an unnecessary constitutional injury.
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OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION
FOR ORDER CONTINUING HEARING ON MOTION FOR
PRELIMINARY INJUNCTION
#74596 v1 saf
Case No. CV11-08083R (MANx)
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V.
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CONCLUSION
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For the foregoing reasons, Courthouse News Service respectfully requests that
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Defendant Michael Planet’s ex parte application for an order continuing the hearing
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on Plaintiff Courthouse News Service’s Motion for Preliminary Injunction be denied.
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Date: October 11, 2011
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HOLME ROBERTS & OWEN LLP
RACHEL MATTEO-BOEHM
DAVID GREENE
LEILA KNOX
By:
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/s/ Rachel Matteo-Boehm
Rachel Matteo-Boehm
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE
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OPPOSITION TO DEFENDANT’S EX PARTE APPLICATION
FOR ORDER CONTINUING HEARING ON MOTION FOR
PRELIMINARY INJUNCTION
#74596 v1 saf
Case No. CV11-08083R (MANx)
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