Courthouse News Service v. Michael Planet

Filing 24

OPPOSITION to MOTION to Dismiss Case and Abstain #21 filed by Plaintiff Courthouse News Service. (Attachments: #1 Proposed Order)(Matteo-Boehm, Rachel)

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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]
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,

CASE NO. CV11-8083 R (MANx)

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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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[PROPOSED] ORDER DENYING IN
PART AND GRANTING IN PART
THE MOTION TO DISMISS AND
ABSTAIN OF DEFENDANT
MICHAEL D. PLANET
Date:
Nov. 21, 2011
Time:
10:00 am
Courtroom: 8, 2nd Floor
Judge: The Hon. Manuel Real

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The Motion to Dismiss and Abstain (“Motion”) of Defendant Michael D. Planet

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(“Defendant”), in his official capacity as Court Executive Officer and Clerk of the

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Ventura County Superior Court, came on for hearing on November 21, 2011, before

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the Honorable Manuel L. Real. Having considered the papers submitted by the

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1
[PROPOSED] ORDER DENYING IN PART AND GRANTING
IN PART DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75288 v1 saf

Case No. CV11-08083R (MANx)

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parties, and the arguments of counsel, and good cause appearing, IT IS HEREBY

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ORDERED as follows:

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(1)

As to Plaintiff Courthouse News Service’s first and second causes of

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action, for violations of the First Amendment and common law rights of access and 42

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U.S.C. § 1983, Defendant’s Motion to Dismiss and Abstain is DENIED on the

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grounds that abstention is neither required nor advisable under the abstention

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doctrines enunciated in O’Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d

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674 (1974) and Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S. Ct.

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643, 85 L. Ed. 971 (1941). New Orleans Public Service, Inc. v. Council of the City of

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New Orleans, 491 U.S. 350, 359, 109 S. Ct. 2506, 105 L. Ed. 2d 298 (1989); Family

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Division Trial Lawyers of the Superior Court-D.C. v. Moultrie, 725 F.2d 695, 703-04

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(D.C. Cir. 1984), Ripplinger v. Collins, 868 F.2d 1043, 1048-49 (9th Cir. 1989).

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(2)

In addition, Defendant’s Motion to Dismiss and Abstain is DENIED as to

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Courthouse News’ first and second causes of action on the grounds that Plaintiff has

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adequately stated claims upon which relief may be granted. E.g., Shroyer v. New

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Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010); Doe v. United

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States Dep’t of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985).

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(3)

As to Courthouse News’s third cause of action, for violation of California

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Rule of Court 2.550, Defendant’s Motion to Dismiss and Abstain is GRANTED on

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the grounds that Defendant has asserted immunity to Courthouse News’ state law

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claim under the Eleventh Amendment to the United States Constitution and hence that

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claim is now barred.

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Courthouse News Service shall file an amended complaint in accordance with

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this Order within 30 days of this Order.

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Date: ________________, 2011

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____________________________
The Honorable Manuel L. Real
United States District Court Judge

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[PROPOSED] ORDER DENYING IN PART AND GRANTING
IN PART DEFENDANT’S MOTION TO DISMISS AND ABSTAIN
#75288 v1 saf

Case No. CV11-08083R (MANx)