Courthouse News Service v. Michael Planet

Filing 25

Opposition to Plaintiff's Motion for Preliminary Injunction Opposition re: MOTION for Preliminary Injunction #3 filed by Defendant Michael Planet. (Attachments: #1 Declaration, #2 Declaration, #3 Declaration, #4 Declaration)(Reilley, Erica)

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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

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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COURTHOUSE NEWS SERVICE,

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Case No. CV11-08083 R (MANx)

Plaintiff,

Assigned for all purposes to
Hon. Manuel L. Real

v.

DEFENDANT’S OPPOSITION
TO PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION

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

Date:
Time:
Courtroom:

Defendant.

November 21, 2011
10:00 a.m.
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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

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TABLE OF CONTENTS

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Page
INTRODUCTION ..................................................................................................... 1

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STATEMENT OF FACTS ........................................................................................ 2

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A. Ventura Superior Court Clerks Must Process By Hand More Than
150,000 New Filings Per Year .................................................................... 2

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B. The State’s Budget Crisis Affects Ventura Superior Court’s Ability
To Process Newly Filed Unlimited Civil Complaints ................................. 3

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1. A Four-Year Hiring Freeze Prevents Hiring Of New CPAs ................. 3

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2. The Superior Court Reduced Public Hours And Established A
“Drop Box” For Late-In-The Day Filings ............................................. 4

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3. New Complaints Can Only Be “Received” For Later Processing
By New Filings Desk CPAs .................................................................. 4

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C. Despite These Constraints, Newly Filed Unlimited Civil Complaints
Typically Are Available The Day After Receipt ......................................... 5

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D. CNS Cannot Honestly Claim There Is A “Longstanding Tradition”
Of “Same-Day Access” To Newly Filed Complaints ................................. 5

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E. Starting In About November 2010, CNS Demanded “Same-Day
Access” To Newly Filed Unlimited Civil Complaints ................................ 7

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ARGUMENT ............................................................................................................. 9
I.

CNS FAILS TO SATISFY ANY OF THE FOUR FACTORS THAT
MIGHT OTHERWISE JUSTIFY THE “DISFAVORED”
PRELIMINARY INJUNCTIVE RELIEF IT SEEKS ....................................... 9

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A. CNS’s Requested Mandatory Injunction Is “Disfavored” And
Subject To Even Stricter Scrutiny ............................................................... 9

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B. CNS Cannot Succeed On The Merits ........................................................ 12

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1. CNS Does Not Have a Right to “Same-Day Access.” ........................ 12

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2. CNS Has Only A Right To Reasonable Access, Which CNS
Already Receives ................................................................................. 15
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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

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TABLE OF CONTENTS
(continued)

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Page

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C. CNS Cannot Demonstrate A “Real And Concrete” Harm, Much
Less Irreparable Harm ............................................................................... 16

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1. CNS Cannot Avail Itself Of Any Presumed Harm Derived
Under Inapposite Freedom Of Expression Cases................................ 16

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2. CNS’s Alleged Loss Of Goodwill Is Hypothetical, At Best ............... 18

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D. No Clear Showing That The Balance Of Equities Tips In Favor Of
CNS ............................................................................................................ 18

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E. CNS’s Requested Injunction Will Not Serve The Public Interest; If
Anything, It Will Harm It .......................................................................... 20

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II.

UNDER ANY CIRCUMSTANCE, A BOND IS REQUIRED ...................... 22

CONCLUSION........................................................................................................ 23

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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

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TABLE OF AUTHORITIES

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Page

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CASES

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Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011) ............................................................................ 15

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Associated Press v. U.S. Dist. Ct.,
705 F.2d 1143 (9th Cir. 1983) ............................................................................ 15
Carroll v. President & Com’rs of Princess Anne,
393 U.S. 175 (1968) ........................................................................................... 16
Chicago Council of Lawyers v. Bauer,
522 F.2d 242 (7th Cir. 1975) .............................................................................. 14
Courthouse News Service v. Jackson,
No. H-09-1844, 2009 WL 2163609 1 .......................................................... 13, 23
Dahl v. HEM Pharms. Corp.,
7 F.3d 1399 (9th Cir. 1993) ................................................................................ 10
Dep’t of Parks & Rec. v. Bazaar Del Mundo, Inc.,
448 F.3d 1118 (9th Cir. 2006) ............................................................................ 11
Doctor John’s, Inc. v. City of Sioux City,
305 F. Supp. 2d 1022 (N.D. Iowa 2004) ............................................................ 22
Dominion Video Satellite, Inc. v. Echostar Satellite Corp.,
356 F.3d 1256 (10th Cir. 2004) .......................................................................... 18
Elrod v. Burns,
427 U.S. 347 (1976) ........................................................................................... 16
Estate of Hearst,
67 Cal. App. 3d 777 (1977) ................................................................................ 14
Globe Newspaper Co. v. Super. Ct.,
457 U.S. 596 (1982) ........................................................................................... 16
Globe v. Newspaper Co. v. Pokaski,
868 F.2d 497 (1st Cir. 1989) .............................................................................. 14

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- iii -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

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TABLE OF AUTHORITIES
(continued)
Page
Grove Fresh Distribs., Inc. v. Everfresh Juice Co.,
24 F.3d 893 (7th Cir. 1994) ................................................................................ 14
Hoechst Diafoil Co. v. Nan Ya Plastics Corp.,
174 F.3d 411 (4th Cir. 1999) .............................................................................. 22
Houchins v. KQED, Inc.,
438 U.S. 1 (1978) ............................................................................................... 17
In re Charlotte Observer,
882 F.2d 850 (4th Cir. 1989) .............................................................................. 14
In re Marriage of Burkle,
135 Cal. App. 4th 1045, 37 Cal. Rptr. 3d 805 (2006) ........................................ 12
In re NVIDIA Corp.,
2008 WL 1859067 (N.D. Cal. 2008) .................................................................. 12
Jacobsen v. U.S. Postal Service,
812 F.2d 1151 (9th Cir. 1987) ............................................................................ 17
Jorgensen v. Cassiday,
320 F.3d 906 (9th Cir. 2003) .............................................................................. 22
Kamakana v. City & Cnty. of Honolulu,
447 F.3d 1172 (9th Cir. 2006) ............................................................................ 12
Klein v. City of San Clemente,
584 F.3d 1196 (9th Cir. 2009) ............................................................................ 20
Los Angeles Memorial Coliseum Commission v. National Football League,
634 F.2d 1197 (9th Cir. 1980) ...................................................................... 16, 18
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,
571 F.3d 873 (9th Cir. 2009) .............................................................................. 10
Mastrovincenzo v. City of New York,
435 F.3d 78 (2d Cir. 2006) ................................................................................. 10
Mazurek v. Armstrong,
520 U.S. 968 (1997) ............................................................................................. 9
- iv -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

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TABLE OF AUTHORITIES
(continued)
Page
Nebraska Press Ass’n v. Stuart,
427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976) ..................................... 14
New York Civil Liberties Union v. New York City Transit Auth.,
652 F.3d 247 (2d Cir. 2011) ............................................................................... 12
New York Times Co. v. U.S.,
403 U.S. 713 (1971) ........................................................................................... 16
Nixon v. Warner Communications, Inc.,
435 U.S. 589, 98 S. Ct. 1306 55 L. Ed. 2d 570 (1978) ...................................... 20
Phoenix Newspapers, Inc. v. U.S. Dist. Ct.,
156 F.3d 940 (9th Cir. 1998) .............................................................................. 15
Press-Enterprise Co. v. Superior Court,
478 US 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) ............................................. 12
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) ............................. 12, 16
S.H.A.R.K. v. Metro Parks Serving Summit County,
499 F.3d 553 (6th Cir. 2007) .............................................................................. 17
Sammartano v. First Judicial Dist. Ct. , In and For Cnty. of Carson City,
303 F.3d 959 (9th Cir. 2002) .............................................................................. 20
Save Our Sonoran, Inc. v. Flowers,
408 F.3d 1113 (9th Cir. 2005) ............................................................................ 22
Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546 (1975) ........................................................................................... 10
Stanley v. Univ. of Southern California,
13 F.3d 1313 (9th Cir. 1994) .............................................................................. 10
Tanner Motor Livery, Ltd. v. Avis, Inc.,
316 F.2d 804 (9th Cir. 1963) .............................................................................. 11
Tradition Club Assocs., LLC v. Tradition Golf Club,
No. EDCV 08-1581, 2008 WL 5352927 (C.D. Cal. Dec. 18, 2008) ................. 22
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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

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TABLE OF AUTHORITIES
(continued)

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Page
United States v. Brooklier,
685 F.2d 1162 (9th Cir. 1982) ............................................................................ 15
United States v. Edwards,
823 F.2d 111 (5th Cir. 1987) .............................................................................. 14
United States v. Simone,
14 F.3d 833 (3d Cir. 1994) ........................................................................... 14, 15
Vassiliades v. Israely,
714 F. Supp. 604 (D. Conn. 1989) ..................................................................... 13
Westmoreland v. Columbia Broadcasting Sys., Inc.,
752 F.2d 16 (2d Cir. 1984) ................................................................................. 17
Whiteland Woods, L.P. v. Township of West Whiteland,
193 F.3d 177 (3rd Cir. 1999) .............................................................................. 17
Winter v. Nat’l Res. Def. Council,
555 U.S. 7 (2008) ........................................................................................... 9, 19
Wood v. Georgia,
370 U.S. 375 (1962) ........................................................................................... 17

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STATUTES

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Cal. Gov’t Code § 68150(l) ..................................................................................... 16

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RULES

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Fed. Rule Civ. Proc. 65............................................................................................ 22

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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

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INTRODUCTION
Plaintiff Courthouse News Service (“CNS”) seeks an immediate mandatory

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injunction against Michael D. Planet, in his official capacity as Executive Officer

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and Clerk of the Superior Court of California, County of Ventura (the “Ventura

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Superior Court”). CNS contends it has a constitutional or common law right to

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“same-day access” to all newly filed unlimited civil complaints, and that Ventura

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Superior Court must change its current procedures—which do everything possible to

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provide reasonable access, as the law requires, and actually provides same- or next-

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day access in the majority of instances—to guarantee “same-day access.” CNS’s

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requested injunction is fundamentally flawed in several respects, and must be denied.

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First, as detailed in Ventura Superior Court’s Motion to Dismiss (filed

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October 20, 2011), CNS’s requested injunction would require this federal court to

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involve itself in the administration of the state’s judicial system, which runs afoul of

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settled principles of federalism, comity, and institutional competence, and which

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urges this Court to exercise its discretion to abstain from the case entirely.

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Second, CNS requests a “disfavored” mandatory injunction insofar as it seeks

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to compel Ventura Superior Court to take an affirmative action—that is, to guarantee

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“same-day access” to all new unlimited civil complaints. This type of injunction is

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subject to heightened scrutiny that CNS cannot survive given that it cannot survive

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even ordinary scrutiny for issuance of a preliminary injunction.

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Third, as just alluded to, CNS cannot make the requisite clear showing on any

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of the four factors it must establish. It cannot prevail on the merits because it cannot

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establish a constitutional or common law right to “same-day access;” it cannot

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establish irreparable harm because any alleged harm cannot be presumed as a matter

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of law and is not sufficiently “real and concrete;” it cannot show the equities tip in its

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favor because the harm to Ventura Superior Court is grave compared to CNS’s

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isolated and legally unsupportable complaints; and issuing the type of injunction

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CNS requests actually would harm the public interest. The Motion must be denied.
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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

STATEMENT OF FACTS

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A.

Ventura Superior Court Clerks Must Process By Hand More Than
150,000 New Filings Per Year.

As explained in the Declaration of Cheryl Kanatzar (filed concurrently

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herewith, (“Kanatzar Decl.”)), who is one of the Deputy Executive Officers of

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Ventura Superior Court, the court receives and processes more than 150,000 separate

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filings each year. (Kanatzar Decl. ¶ 5.) The Civil Department employs 14 Court

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Processing Assistants (“CPAs”) and one supervisor to process all these filings. (Id. ¶

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6.) Assuming there are 260 court days—which is far too forgiving, as that number

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only takes into account weekends, and not court holidays, mandatory closure days,

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staff vacation days, and the like—that equates to more than 575 filings each day.

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None of these 150,000-plus documents can be filed electronically. Unlike

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federal courts, which have long since adopted PACER, or state courts that have

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electronic filing capabilities, all filings in Ventura must be processed by hand.

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Ms. Kanatzar puts it this way in paragraph 4 of her Declaration:

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Ventura Superior Court maintains only standard physical
files for all actions pending in the County of Ventura.
Litigants must physically file paper copies of their
documents. They can do so either by depositing them with
CPAs in our Civil Department as described elsewhere in
this Declaration, or by faxing or emailing their documents
to our fax-filing desk CPA, who must then generate paper
documents for our files. Therefore, unlike the clerk’s
office in federal and other electronic filing courts, the
clerk’s office in the Ventura Superior Court is burdened by
the substantial additional administrative task imposed by
the need to process by hand every document filed with the
court.

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Hence, at least this much is certain of the court’s current operations:

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First, each of the court’s CPAs carries a very heavy workload to begin with.

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Second, it is incredibly misleading to suggest that the court’s CPAs need “only”

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process “fewer than eight complaints per court day.” (Mot. at 6.) The truth is that
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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

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the court’s CPAs handle hundreds of filings each day, many of which (including ex

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parte applications and motions of various types) demand more immediate attention

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than “new complaint files [which] remain essentially inactive for approximately 65

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days, until the summons and complaint are served, and the defendant(s) answer or

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take some other action.” (Kanatzar Decl. ¶ 17.) And third, CNS compares apples

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with oranges by suggesting that Ventura Superior Court should be ordered to

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guarantee “same-day access” to new complaints because the federal courts and other

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courts identified in its survey that accept electronic filings have the ability to do so.

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(Compl. ¶¶ 11, 13; Marshall Decl. ¶¶ 4-6; Girdner Decl. ¶¶ 13-16 .)

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B.

The State’s Budget Crisis Affects Ventura Superior Court’s Ability
To Process Newly Filed Unlimited Civil Complaints.

The responsibilities borne by each CPA have and will continue to become

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even heavier. Over the last three years, Ventura Superior Court’s budget has been

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cut by more than $13 million, which has resulted in a growing deficit between its

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revenue and expenses. (Declaration of Robert Sherman in Support of Defendant’s

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Opposition to Plaintiff’s Motion for Preliminary Injunction, filed concurrently

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herewith (“Sherman Decl.”) ¶ 3.) This fiscal year, Ventura Superior Court’s deficit

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has reached $5.9 million; next fiscal year, the deficit is expected to exceed $12

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million. (Id. ¶¶ 12-13.)

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1.

A Four-Year Hiring Freeze Prevents Hiring Of New CPAs.

These increasing budgetary shortfalls have required a four-year-running hiring

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freeze and increased mandatory furlough days; as a result, Ventura Superior Court’s

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administrative vacancy rate has more than doubled—from 22 in 2008, to 48 in 2011.

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(Kanatzar Decl. ¶ 11; Sherman Decl. ¶ 5.) Moreover, at least eight of those

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vacancies are for positions within the civil processing unit and records departments,

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thereby directly implicating the resources available to process filings such as those

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that CNS seeks guaranteed “same-day access” to here. (Kanatzar Decl. ¶ 11.)

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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

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2.

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The Superior Court Reduced Public Hours And Established
A “Drop Box” For Late-In-The Day Filings.

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To further mitigate the impact of budgetary shortfalls, Ventura Superior Court

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reduced its public business hours from a closing time of 5:00 p.m. back to 4:00 p.m.

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(Id. ¶ 12.) And effective January 1, 2012, the clerk’s office will close another hour

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earlier, at 3:00 p.m. (Sherman Decl. ¶ 7.) To accommodate this change, Ventura

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Superior Court installed a secure drop box in which filings of all types could be

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received. (Kanatzar Decl. ¶ 13.) That drop box is checked twice per day—once at

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4:30 p.m. to check how many documents it contains, and once at 5:00 p.m. to

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retrieve all the documents and take them inside for processing. (Id.) All documents

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deposited in the drop box are stamped “received” on the back of the first page of the

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filing, and are deemed filed on that date. (Id.)

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3.

New Complaints Can Only Be “Received” For Later
Processing By New Filings Desk CPAs.

As an additional mitigating measure, Ventura Superior Court changed the
procedure by which it accepts new complaints for filing. Prior to June 2010, most
new complaints were received by the clerk’s office at the public filing windows, and
CPAs were immediately responsible for fully processing and opening new files. (Id.
¶ 14.) This practice of creating new files upon receipt of complaints at the filing
window became increasingly unworkable due to the small number of open clerk
windows and the reduced number of CPAs available to staff them. (Id.)
Ventura Superior Court therefore implemented a change requiring that most
new complaints could only be “dropped off” at the filing windows to be processed
by back-counter CPAs. (Id. ¶¶ 15-16.) This change allowed the Civil Department’s
limited staff to deal with other customers waiting in line at the civil filing windows,
and to handle ex parte applications and other time-sensitive matters. (Id. ¶ 17.)

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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

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C.

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Despite These Constraints, Newly Filed Unlimited Civil Complaints
Typically Are Available The Day After Receipt.

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CNS complains that during the period from August 8, 2011, through

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September 2, 2011, it was permitted same-day or next-day access in only a very

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small percentage of the 152 new unlimited civil complaints Ms. Krolak reviewed.

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(Compl. ¶ 29.) These figures conflict in every way with what the actual data shows.

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There were 147 total new unlimited civil complaints filed during the time

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period at issue. (Declaration of Julie Camacho in Support of Defendant’s Opposition

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to Plaintiff’s Motion for Preliminary Injunction, filed concurrently herewith

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[“Camacho Decl.”] ¶ 15.) Forty-seven (47) of those new complaints were received,

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processed and placed in the media bin all on the same day—i.e., “same-day access.”

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(Id. ¶ 16.) Fifty-four (54) of those new complaints were received on one day and

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processed and placed in the media bin the next day—i.e., next-day access. (Id. ¶ 17.)

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And 18 of those new complaints were processed and placed in the media bin within

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two days of receipt. (Id. ¶ 18.) Thus, a full 77% of new complaints were accessible

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within two days after receipt, with the bulk of them available the same- or next-day.

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Of the remainder, at least 17 new complaints (or another 11%) needed to be

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assigned to a judicial officer immediately. (Id. ¶ 19.) Another seven did not get

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placed in the media bin due to an inadvertent clerical error. (Id. ¶ 20.) The balance

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of new complaints that had delayed access—only a handful—all had unusual delays

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that can be explained. (Id. ¶ 21.)1

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D.

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CNS Cannot Honestly Claim There Is A “Longstanding Tradition”
Of “Same-Day Access” To Newly Filed Complaints.

CNS claims the First Amendment guarantees a right of “same-day access” to
newly filed civil complaints because of an allegedly “longstanding tradition for both

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Similarly, in a February 7, 2011 letter to Ventura Superior Court, CNS points
to four cases demonstrating access “nowhere near same-day.” (Marshall Decl., Ex.
4.) CNS’s claims again conflict with the actual data. (Camacho Decl. ¶¶ 22-23.)
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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

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state and federa courts to provide re
al
o
eporters w visit the court eve day wit access
who
e
ery
th

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to new complai at the e of the day on wh they ar filed.” (
w
ints
end
hich
re
(Compl. ¶ 4.)

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Whateve else may be said of that alleged “traditio CNS contradicts its own
er
y
f
on,”
ts

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argum in two of its mo recent p
ment
ost
public pron
nouncemen First, i February 2011,
nts.
in
y

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CNS published its “Repor Card Sum
d
rt
mmary—S
Superior Court of the State of C
e
California

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Acce To New Filed C
ess
wly
Civil Comp
plaints:”

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2

(Decl
laration of Karen Da
f
alton-Koch Submitted in Oppos
d
sition to Pla
aintiff’s M
Motion
for Pr
reliminary Injunction filed con
y
n,
ncurrently herewith (
(“Dalton-K
Koch Decl.”
”)
Ex. A CNS gave “As” t 5 courts that maint electro files (A
A.)
g
to
tain
onic
Alameda, Los
Ange
eles, Rivers
side, Santa Clara) or that are co
a
onsiderably larger an have gre
y
nd
eater
staff (San Franc
cisco, Los Angeles). However, CNS repo
,
orted that t remaini 12
the
ing
court failed to provide “s
ts
same-day a
access.” (I
Ibid.)
Second, in sponsoring SB 326
i
6—see Defendant’s M
Motion to Dismiss at 8-9—
t
CNS claimed to have “dir
o
rectly expe
erienced th deteriora
he
ation of tim access to the
mely
s
civil court recor
rd.” (Deft Req. for Judicial N
t’s
r
Notice In S
Support of Mot. to Di
ismiss,
Ex. B at B9.) Indeed, it a
appears tha CNS sup
at
pported SB 326 precis becau there
sely
use
is no historical right to “same-day a
access” to n
newly filed complain in Califo
d
nts
fornia.
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Def Opp. to Plf Mot. for Pre
ft’s
f’s
elim. Inj.
Case No. CV 11-08083 R (
V
(MANx)

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E.

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Starting In About November 2010, CNS Demanded “Same-Day
Access” To Newly Filed Unlimited Civil Complaints.

Shortly after Ventura Superior Court implemented its change for processing

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only “dropped off” complaints, CNS changed its business model by deciding to visit

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Ventura Superior Court on a daily, rather than the once- or twice-weekly basis.

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(Compl., ¶¶ 22, 25.) In November 2010, CNS’s reporter, Juliana Krolak, started

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demanding “same-day access” to newly filed unlimited civil complaints. (Id. ¶ 25.)

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From about February 2011 through March 2011, Ventura Superior Court staff

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communicated with CNS on several occasions to try and reach a compromise on

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CNS’s demands. (Kanatzar Decl. ¶¶ 19-20, 22-27.)

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As a result of those exchanges, Ventura Superior Court reprioritized the

12

procedures by which newly filed complaints are processed and made available to the

13

public. (Id. ¶¶ 22-27.) Specifically, the procedure was changed to give “the highest

14

priority” to processing new civil unlimited complaints, so that they could be filed

15

and placed in the media bin with a general two-day turnaround. (Id. ¶¶ 27-28.) To

16

further facilitate this change, Ventura Superior Court even obtained this past August

17

an exception from the court-wide hiring freeze to create a second new filings desk

18

and to staff it with a CPA whose first priority is to identify and process newly filed

19

unlimited civil complaints. (Id. ¶ 29.)

20

But CNS still remains unsatisfied. There are, however, a number of reasons

21

why “same-day access”—certainly a laudable goal—cannot be guaranteed in every

22

instance:

23

•

Unpredictable “drop off.” New complaints can be “dropped off” in a

24

number of different ways, and may not get picked up for processing until the end of

25

the day; Ventura Superior Court has no control over the timing by which these new

26

complaints are dropped and therefore cannot guarantee “same-day access” to them

27

under even the best of circumstances. (Id. ¶ 31.)

28
-7-

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

•

Immediate judicial action. Certain new complaints must be assigned to

2

judicial officers immediately upon receipt, and may remain in chambers for one or

3

more days (or even weeks) as the judicial officer evaluates whether any additional

4

action needs to be taken. (Id. ¶ 33.) These new complaints are placed in the media

5

bin upon release from chambers, but Ventura Superior Court cannot guarantee

6

“same-day access” prior to that point. (Id.)

7

•

Quality control. When new CPAs begins working in the clerk’s office,

8

it is not uncommon for them to process incomplete complaints that should be

9

rejected; to enter crucial case data improperly that would impair CCMS from

10

properly tracking and assigning the case; and to enter contact information for

11

attorneys improperly. (Id. ¶ 34.) To maintain the public’s trust in its system and

12

filings, Ventura Superior Court subjects to a quality control review any new files

13

processed by new CPAs. (Id.) This review must occur before the file is sent to

14

media bin so that errors may be corrected and resubmitted. (Id.) This process can

15

take several days and is another reason why Ventura Superior Court cannot

16

guarantee “same-day access” to those complaints.

17

CNS claims that guaranteeing “same-day access” is as “simple as opening a

18

door” or permitting CNS to “go behind the counter” to review “dropped-off”

19

complaints that have not yet been processed. (Girdner Decl. ¶ 22.) As Ventura

20

Superior Court has tried to explain to CNS, this is not a workable solution. First,

21

Ventura Superior Court’s security procedures were tightened considerably after a

22

shooting incident several years ago at the Employment Development Department in

23

Oxnard. (Kanatzar Decl. ¶ 36.) Ventura Superior Court’s current policies prohibit

24

members of the general public from accessing processing desks where new civil

25

unlimited complaints are maintained prior to processing. (Id.) Second, Ventura

26

Superior Court cannot allow CNS or other members of the public to review new

27

unlimited civil complaints until they are filed to ensure proper respect for the privacy

28

of its litigants. (Id. ¶ 37.) It would be entirely inappropriate to permit CNS access to
-8-

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

fee waiver requests or other documents—which typically accompany new filings—

2

containing such confidential information. (Id.) Third, permitting CNS access behind

3

the counter would violate Ventura Superior Court’s accounting protocols, which

4

impose strict cash handling and audit procedures. (Id. ¶ 38.)
Beyond all this, though, Ventura Superior Court fully complies with its legal

5
6

obligation to provide “reasonable access” to “court records,” and overwhelmingly

7

that access is in fact provided on a same-day or next-day basis.
ARGUMENT

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

I.

CNS FAILS TO SATISFY ANY OF THE FOUR FACTORS THAT
MIGHT OTHERWISE JUSTIFY THE “DISFAVORED”
PRELIMINARY INJUNCTIVE RELIEF IT SEEKS.
“[A] preliminary injunction is an extraordinary and drastic remedy, one that

should not be granted unless the movant, by a clear showing, carries the burden of
persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original;
citation omitted). In Winter v. Nat’l Res. Def. Council, 555 U.S. 7, 20 (2008), the
United States Supreme Court affirmed that a plaintiff seeking a preliminary
injunction must make a clear showing of all four following factors: (1) that it is
likely to succeed on the merits, (2) that it is likely to suffer irreparable harm in the
absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4)
that an injunction is in the public interest.
For the reasons discussed below, CNS cannot satisfy a single factor, much less
all four. And this outcome only is bolstered by the stricter scrutiny that must guide
this Court’s consideration of CNS’s requested mandatory injunction.
A.

CNS’s Requested Mandatory Injunction Is “Disfavored” And
Subject To Even Stricter Scrutiny.

To avoid the more stringent scrutiny applied to disfavored mandatory
injunctions, CNS constructs an argument that, because the alleged “policy” sought to
be enjoined restricts First Amendment rights, CNS’s requested injunction is
-9-

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

presumed to preserve the status quo, and therefore is prohibitory in nature, rather

2

than mandatory. (Mot. at 7 & n.4.) Cf. Stanley v. Univ. of Southern California, 13

3

F.3d 1313, 1320 (9th Cir. 1994) (a “mandatory” injunction “goes well beyond simply

4

maintaining the status quo pendente lite [and] is particularly disfavored”) (internal

5

quotations and citations omitted); Dahl v. HEM Pharms. Corp., 7 F.3d 1399, 1403

6

(9th Cir. 1993) (stating that mandatory preliminary injunctions are “subject to a

7

heightened scrutiny and should not be issued unless the facts and law clearly favor

8

the moving party”). CNS’s construction must fail.

9

First, CNS’s position assumes too much. There is no First Amendment right

10

to “same-day access.” (See infra Section I.B.1.) Thus, even if there was a

11

“presumption” in First Amendment cases that the status quo is the condition in which

12

a person is free to exercise their rights (there is not2), CNS cannot invoke it here.

13

Second, CNS mischaracterizes the nature of its requested relief. Whereas a

14

prohibitory injunction prohibits a party from taking action, “[a] mandatory

15

injunction orders a responsible party to ‘take action.’” Marlyn Nutraceuticals, Inc. v.

16

Mucos Pharma GmbH & Co., 571 F.3d 873, 879-80 (9th Cir. 2009) (vacating

17

mandatory injunction requiring defendant to take affirmative steps to recall

18

infringing drug where record failed to establish harm) (internal quotation omitted).

19

Here, CNS tries to cleverly articulate its injunction as one “prohibiting him [Mr.

20

Planet] . . . from continuing his policies resulting in delayed access to new unlimited

21

jurisdiction civil complaints.” (Compl. Prayer ¶ 1 (emphasis added).) But Ventura

22

Superior Court is providing access to newly filed unlimited civil complaints as

23

quickly as possible given the resources available and the competing concerns over

24

accurate processing of litigants’ documents. What CNS really wants is an injunction

25
26
27
28

2

And CNS’s cited cases do not establish otherwise. See Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 562 (1975) (denying plaintiff’s
application to use municipal venue based on content of “speech” actually changed
status quo of venue generally being publicly available); Mastrovincenzo v. City of
New York, 435 F.3d 78, 90 (2d Cir. 2006) (recognizing that proper label can be
somewhat ambiguous because injunction commands usually can be phrased in either
prohibitory or mandatory terms).
- 10 -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

that makes Ventura Superior Court provide that access faster. Doing something

2

faster requires an affirmative act. To be sure, if Ventura Superior Court simply

3

“stopped” what it was doing now, nothing would get processed and access would be

4

indefinitely delayed. CNS’s requested injunction would require Ventura Superior

5

Court to “take action”—it is a mandatory injunction subject to heightened scrutiny.

6

Third, the mandatory nature of CNS’s requested injunction only is

7

underscored by the fact that it does not seek to preserve the status quo, but instead

8

meaningfully alters it. “Status quo” is defined as the last uncontested status that

9

preceded the pending controversy. See Dep’t of Parks & Rec. v. Bazaar Del Mundo,

10

Inc., 448 F.3d 1118, 1124 (9th Cir. 2006) (citing GoTo.Com, Inc. v. Walt Disney Co.,

11

202 F.3d 1199, 1210 (9th Cir. 2000)). Thus, if CNS sought to preserve the status

12

quo, it would seek an injunction that would order Ventura Superior Court to not

13

change its current processes in a way that might negatively impact CNS’s access to

14

newly filed unlimited civil complaints. That is not what CNS seeks. It wants a

15

preliminary injunction guaranteeing “same-day access”—now.

16

Fourth, CNS’s requested injunction also would award it with all the relief to

17

which it claims it is entitled after a full trial on the merits, which is itself disfavored:

18

“[I]t is not usually proper to grant the moving party the full relief to which he might

19

be entitled if successful at the conclusion of a trial. This is particularly true where

20

the relief afforded, rather than preserving the status quo, completely changes it.”

21

Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808-09 (9th Cir. 1963).

22

CNS’s requested injunction would require all the same changes to Ventura Superior

23

Court’s internal operations and processing procedures—and all the same strains on

24

its budget and already-stretched resources—as would be required from an (unlikely)

25

judgment on the merits. And Ventura Superior Court’s ability to resume its prior

26

operations following CNS’s defeat on the merits only would cost the court more.

27

CNS’s requested injunction is disfavored and subject to heightened scrutiny.

28
- 11 -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1
2
3

B.

CNS Cannot Succeed On The Merits.
1.

CNS Does Not Have a Right to “Same-Day Access.”

For all the same reasons that CNS fails to even state a claim as a matter of law

4

(see Deft’s Mot. to Dismiss at 18-23)—that is, because there is no constitutional or

5

federal common law right to “same-day access” to court records—CNS is unlikely to

6

succeed on such claim as well.

7

CNS does not cite a single, published decision establishing a right of “same-

8

day access” to court records. Indeed, in Richmond Newspapers, Inc. v. Virginia, 448

9

U.S. 555, 579-81, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), the Supreme Court first

10

held that the First Amendment afforded the press and public an affirmative, qualified

11

right of access to criminal court proceedings. That qualified right has since been

12

extended to civil filings. See, e.g., New York Civil Liberties Union v. New York City

13

Transit Auth., 652 F.3d 247, 250-51 (2d Cir. 2011); In re Marriage of Burkle, 135

14

Cal. App. 4th 1045, 1052-53, 1060-62, 37 Cal. Rptr. 3d 805 (2006).

15

In determining whether such a right exists, the Court identified two related

16

criteria, which it later termed “considerations of experience and logic:” (1) whether

17

the place and process have historically been open to the press and general public

18

(i.e., “experience”); and (2) whether public access plays a significant positive role in

19

the functioning of the particular process in question (i.e., “logic”). Press-Enterprise

20

Co. v. Superior Court, 478 US 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (Press-

21

Enterprise II). CNS cannot satisfy either criteria.

22
23
24

a.

“Experience” fails to demonstrate a right to “same-day
access.”

For the “experience” inquiry, CNS’s purports to establish “a longstanding

25

tradition” of “same-day access” to new complaints, by citing a handful of decisions

26

concerning the public’s access rights in the context of motions to seal or unseal

27

records. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178-80 (9th

28

Cir. 2006); In re NVIDIA Corp., Case No. C 06–06110 SBA, 2008 WL 1859067 *1,
- 12 -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

**2-4 (N.D. Cal. 2008); Vassiliades v. Israely, 714 F. Supp. 604, 606 (D. Conn.

2

1989). Although those courts acknowledged a general right of access to those

3

records (a point Ventura Superior Court does not dispute), those courts in no way

4

addressed whether such access must occur the same day the documents are filed.

5

CNS next resorts to an unpublished Texas decision where CNS successfully

6

obtained the kind of preliminary injunctive relief it seeks here. Courthouse News

7

Service v. Jackson, No. H-09-1844, 2009 WL 2163609 1, **2-5, 38 Media L. Rep.

8

1890 (S.D. Tex. July 20, 2009). Yet, for the same reasons discussed here, the

9

reasoning of that decision lacks rational support: None of the authority on which that

10

district court relied actually held—or even considered whether—a First Amendment

11

right to “same-day access” of newly filed civil complaints exists. At most, the

12

court’s discussion of a First Amendment right of access confirms general principles

13

of reasonable access in criminal and civil cases. See id. at **3-4.

14

CNS lastly attempts to construct a “tradition” of “same-day access” to court

15

records from a sampling of courts that extend to it the courtesy of providing “same-

16

day access” to new complaints. (Mot. at 2-4; Girdner Decl. Ex. 3.) CNS identifies

17

courts in only 23 of the 50 states where it is allegedly provided “same-day access” to

18

new civil complaints. (Girdner Decl. Ex. 3.) And within California, CNS alleges the

19

courtesy of “same-day access” at only seven of approximately 532 court locations

20

within California’s 58 counties. (Id. at 23, 25, 27, 29-31.) Indeed, CNS’s “Report

21

Card Summary” only underscores the lack of any such “tradition.” (Dalton-Koch

22

Decl., Ex. A.) There simply is no “tradition” of “same-day access” in California.

23
24
25

b.

“Logic” fails to demonstrate a right to “same-day
access.”

Nor does the “logic” component of the First Amendment analysis recognize a

26

right of “same-day access” to court records. CNS suggests that local court

27

considerations—including budget constraints, court caseloads, personnel capacities,

28

and priorities of other court business—must bow to the “newsworthiness” of newly
- 13 -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

filed unlimited civil complaints in the short window between when they are received

2

by the court for processing and then filed. (Mot. at 15-16.) But the lack of

3

contemporaneous news reporting does not itself diminish the significance of the

4

news reports, even in the criminal context. United States v. Edwards, 823 F.2d 111,

5

119 (5th Cir. 1987) (“The value served by the first amendment right of access is in

6

its guarantee of a public watch to guard against arbitrary, overreaching, or even

7

corrupt action by participants in judicial proceedings. Any serious indication of such

8

an impropriety, would, we believe, receive significant exposure in the media, even

9

when such news is not reported contemporaneously with the suspect event.”). Thus,

10

even where the Supreme Court historically has been the most protective, there has

11

been no recognized right of “same-day access” to such records.

12

CNS attempts derive “logic” supporting a “same-day access” right from its

13

claim that any delay in access to public records is the functional equivalent of an

14

outright denial of access to those records. (Mot. at 14-16.) But CNS’s authority is

15

all inapposite—it involves either blanket restrictions on access to records3 or

16

proceedings,4 not at issue here, or has nothing to do with the public right of access

17

whatsoever.5 Indeed, in United States v. Simone, 14 F.3d 833, 842 (3d Cir. 1994),

18

where the Third Circuit rejected the later release of a transcript as a permissible

19
20
21
22
23
24
25
26
27
28

3

See Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 895, 897
(7th Cir. 1994) (considering journalists’ motion to intervene to vacate seal of entire
court file and to modify protective order); Globe v. Newspaper Co. v. Pokaski, 868
F.2d 497, 502-07 (1st Cir. 1989) (challenging state sealing statute automatically
sealing records of cases ending in acquittal or a finding of no probable cause); Estate
of Hearst, 67 Cal. App. 3d 777, 784-86 (1977) (considering propriety of probate
court order vacating prior sealing order).
4
See United States v. Simone, 14 F.3d 833, 842 (3d Cir. 1994) (holding release
of transcript following exclusion of news media from criminal proceedings
inadequate substitute given right of access to attend judicial proceedings); In re
Charlotte Observer, 882 F.2d 850, 852-56 (4th Cir. 1989) (holding unconstitutional
trial court’s hearing closure for change of venue determination).
5
See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 556-61, 96 S. Ct. 2791, 49
L. Ed. 2d 683 (1976) (considering whether order restraining media from publishing
or broadcasting accounts of confessions or admission made by the accused
constituted impermissible prior restraint on speech); Chicago Council of Lawyers v.
Bauer, 522 F.2d 242, 247-50 (7th Cir. 1975) (analyzing whether restrictions on
speech amounted to a prior restraint).
- 14 -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

substitute for the media’s right to be present at a judicial hearing, the court

2

nevertheless stated, “[w]e do not doubt that the ten day interval between the hearing

3

and the release of the transcript had very little effect on the value of the information

4

as news.” (Emphasis added.) Thus, neither Simone nor any other of CNS’s cases

5

establish a constitutional or common law right to “same-day access.”6

6

2.

7
8
9

CNS Has Only A Right To Reasonable Access, Which CNS
Already Receives.

Starting from the flawed premise that it has a right to “same-day access” to
begin with, CNS seeks to impose a “stringent three-part test” that Ventura Superior

10

Court must satisfy to “overcome” that “right.” (Mot. at 16-17 (relying on United

11

States v. Brooklier, 685 F.2d 1162, 1168-69 (9th Cir. 1982) and its progeny).)

12

CNS’s entire analysis is inapposite.

13

As discussed, there is no right to “same-day access,” and none of the

14

additional cases cited by CNS that invoke this three-part test suggest otherwise.

15

They all concern instances where courts have made specific orders directed at a

16

particular hearing, transcript or filing for the purpose of sealing the record or closing

17

off access to the public—entirely or indefinitely. See Phoenix Newspapers, Inc. v.

18

U.S. Dist. Ct., 156 F.3d 940 (9th Cir. 1998) (order sealing transcripts of hearings

19

conducted during jury deliberations in a criminal trial); Associated Press v. U.S. Dist.

20

Ct., 705 F.2d 1143 (9th Cir. 1983) (order requiring filings in a particular criminal

21

case to be filed in camera with 48-hour window for objections prior to sealing

22

determination); United States v. Brooklier, 685 F.2d 1162 (9th Cir. 1982) (orders

23

closing various hearings and refusing release of in camera proceedings prior to close

24

of criminal trial).

25
26
27
28

6

CNS’s alternative reliance on the “serious questions” standard for injunctive
relief fares no better than its claim of likely success. There are no serious questions
on this issue, and CNS still cannot satisfy the other three factors. See Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).
- 15 -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

Neither situation is implicated here. Ventura Superior Court’s “policy” of

2

processing new complaints prior to making them available to the public does not

3

target any particular case or subject matter, or withhold documents from any

4

particular group; it does not delay access for a set period of time, if at all. In fact, its

5

“policy” is to process all new complaints as promptly as its resources will allow, and

6

to give the public access immediately thereafter. And overwhelmingly that “policy”

7

provides reasonable access, or next-day access, if not “same-day access.” (See

8

Camacho Decl. ¶¶ 4-22.)

9

This is all the law requires. Cal. Gov’t Code § 68150(l); see also Cal. Rs. Ct.

10

2.500(a), 2.503(a); Richmond Newspapers, Inc., 448 U.S. at 581 n.18

11

(acknowledging “reasonable limitations” may be placed on public’s access to

12

criminal trial); Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 607 n.17 (1982).

13
14
15

C.

CNS Cannot Demonstrate A “Real And Concrete” Harm, Much
Less Irreparable Harm.

To obtain the mandatory injunctive relief it seeks, CNS must demonstrate

16

irreparable harm that is not just hypothesized, but is “real and concrete.” Los

17

Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d

18

1197, 1201-1202 (9th Cir. 1980). CNS cannot meet that burden.

19
20
21

1.

CNS Cannot Avail Itself Of Any Presumed Harm Derived
Under Inapposite Freedom Of Expression Cases.

CNS relies on a host of inapposite authorities for the unsupportable

22

proposition that any delay in access to newly filed unlimited civil complaints

23

constitutes irreparable harm. All the cases cited by CNS, however, involve harm

24

caused by restraint on the freedom of expression or speech, not restraint on access to

25

court records. See, e.g., Elrod v. Burns, 427 U.S. 347, 357 (1976) (freedom of belief

26

and association); New York Times Co. v. U.S., 403 U.S. 713, 717 (1971) (freedom of

27

press); Carroll v. President & Com’rs of Princess Anne, 393 U.S. 175 (1968) (“The

28

elimination of prior restraint was a ‘leading purpose’ in the adoption of the First
- 16 -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

Amendment.”); Wood v. Georgia, 370 U.S. 375, 376 (1962) (freedom to publish

2

“thoughts and opinions”); Jacobsen v. U.S. Postal Service, 812 F.2d 1151, 1154 (9th

3

Cir. 1987) (involving vendor’s freedom to sell newspapers in public forum).

4

There is an important distinction between freedom of expression cases and

5

those involving access to information; both of them are rooted in First Amendment

6

principles, but they have developed along distinctly different lines. See Houchins v.

7

KQED, Inc., 438 U.S. 1, 9-10 (1978) (distinguishing right to access information

8

cases from First Amendment cases where courts are “concerned with the freedom of

9

the media to communicate information once it is obtained”). Thus, although CNS

10

attempts to conflate the two, the United States Supreme Court has made clear that

11

they are not intrinsically linked:

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

There are few restrictions on action which could not be
clothed by ingenious argument in the garb of decreased
data flow. For example, the prohibition of unauthorized
entry into the White House diminishes the citizen’s
opportunities to gather information he might find relevant
to his opinion of the way the country is being run, but that
does not make entry into the White House a First
Amendment right. The right to speak and publish does not
carry with it the unrestrained right to gather information.
Id. at 12 (internal quotations omitted and emphasis added); see also S.H.A.R.K. v.
Metro Parks Serving Summit County, 499 F.3d 553, 559-560 (6th Cir. 2007).
For this reason, CNS’s reliance on the “precious First Amendment right of
freedom of press” in Jacobsen (Mot. at 22) to demonstrate irreparable harm here—
which concerns, at most, the right to “gather information”—is misplaced. Whiteland
Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 183 (3rd Cir. 1999)
(stating forum analysis inapplicable to resolve restrictions on right of access);
Westmoreland v. Columbia Broadcasting Sys., Inc., 752 F.2d 16, 21-22 (2d Cir.
1984) (calling forum analysis “inapposite” to access to courtroom cases); see also
Houchins, 438 U.S. at 10 (holding news organizations hold no greater “access to
- 17 -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

government information beyond that open to the public generally”). The cases do

2

not support recognition of a right to “same-day access” to court records, much less a

3

presumption of irreparable harm resulting from a purportedly violation of that non-

4

existent right.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2.

CNS’s Alleged Loss Of Goodwill Is Hypothetical, At Best.

CNS’s effort to demonstrate irreparable harm “as a matter of law because the
Eleventh Amendment bars [CNS] from seeking monetary damages” for its alleged
loss of goodwill (Mot. at 22) fares no better. The inability to recover money
damages does not alone establish irreparable harm. See Los Angeles Memorial
Coliseum Comm’n, 634 F.2d at 1202 (reversing injunction where proponent failed to
establish both irreparable harm and inadequacy of legal remedies). CNS still must
demonstrate that its alleged injury to goodwill is concrete and real. It has not done
so; in fact, its own pleadings demonstrate that such harm is hypothetical, at best.
(See Mot. at 22 (“Prolonged delays in access will diminish the value of its reports to
its subscribers, leading to a loss of goodwill.”) (emphasis added); see also Compl. ¶
39; Girdner Decl. ¶ 28.)
CNS does not allege or attest that any subscriber actually has questioned the
value of its reports; it does not allege or attest that it has actually lost any
subscribers; it also does not allege or attest that it has lost out on an opportunity to
timely report an event. CNS’s theoretical and conclusory claims of loss to goodwill
fail to demonstrate a real and concrete harm, much less an irreparable one. See
Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1264 (10th
Cir. 2004) (reversing issuance of preliminary injunction where requesting party
failed to establish irreparable harm solely by alleging breach of contract).
D.

No Clear Showing That The Balance Of Equities Tips In Favor Of
CNS.

CNS purports to show that the balance of equities tips in its favor by making
the incredible claim that Ventura Superior Court “will suffer no injury.” (Mot. at
- 18 -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

23.) Nothing could be farther from the truth. As a matter of finance, Ventura

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Superior Court cannot gather additional resources to address CNS’s concerns—there

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simply is no money available. (Sherman Decl. ¶¶ 12-15.) In fact, the budgetary

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shortfall anticipated for the next fiscal year is so great that even depletion of every

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last penny of Ventura Superior Court’s reserve fund ($4.3 million), combined with

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use of every last penny of the only other local funding source ($2.7 million), will still

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leave a shortfall of $5.2 million. (Id. ¶ 14.) As a result, Ventura Superior Court will

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have no choice but to cut additional staff resources or further reduce court hours (id.

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¶ 15)—either of which only will be exacerbated by an order requiring it to provide

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“same-day access” to every unlimited civil complaint.
As practical matter, Ventura Superior Court cannot, even with unlimited

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resources, guarantee “same-day access.” As described above, the timing of

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“dropped” filings, the need for immediate assignment to judicial officers, and the

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need to ensure quality control over the processing of new complaints all make it

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impossible to guarantee “same-day access.” (Kanatzar Decl. ¶¶ 31-34.) CNS’s

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suggestion that its reporters simply could be let “behind the counter” likewise is

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unworkable. It puts court staff in an increased security risk, it violates the

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confidentiality of litigants’ privacy interests, and it violates the strict accounting

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protocols to which Ventura Superior Court must adhere. (Id. ¶¶ 35-39.)

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By contrast, CNS is the only news outlet that seeks regular access—much less

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“same-day access”—to Ventura Superior Court’s new complaints. (Id. ¶ 18.)

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Requests are only infrequently received from other reporters, and reasonable access

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is provided without any objection from the reporters. (Id.) Merely asking whether

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the equities of a demanding news outlet seeking an unsupported right to “same-day

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access” to court records should trump the equities of a cash- and resource-strapped

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court doing its best under the circumstances to provide reasonable access—and often

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achieving same- or next-day access—seems to answer the question. The balance of

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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

equities here tips sharply in Ventura Superior Court’s favor and compels denial of

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CNS’s requested mandatory injunction.

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E.

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CNS’s Requested Injunction Will Not Serve The Public Interest;
If Anything, It Will Harm It.

The Supreme Court has properly cautioned that “courts of equity should pay

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particular regard for the public consequences in employing the extraordinary remedy

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of injunctions.” Winter, 555 U.S. at 377 (quotations and citation omitted). And

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although various courts have recognized a strong public interest in upholding First

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Amendment principles, that interest is recognized only in freedom of expression

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cases, as CNS’s own authority demonstrates. Klein v. City of San Clemente, 584

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F.3d 1196, 1208 (9th Cir. 2009) (“The ordinance [which restricts leafleting] thus

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infringes on the free speech rights not only of Klein, but also of anyone seeking to

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express their views in this manner in the City of San Clemente.”); see also

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Sammartano v. First Judicial Dist. Ct. , In and For Cnty. of Carson City, 303 F.3d

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959, 974 (9th Cir. 2002) (summarizing other circuit cases recognizing right in

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freedom of expression cases). This is not a freedom of expression case; the public

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interest on which CNS relies simply is not implicated here.7

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Even if it were, that public interest is not absolute and can be overcome

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“where the First Amendment activities of the public are only limited, rather than

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entirely eliminated.” Sammartano, 303 F.3d at 974. That is precisely the

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circumstance here: CNS faces a very limited delay (if any) in access to newly filed

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unlimited civil complaints that must bow to the severe harm to various other public

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interests that would be incurred by granting the mandatory injunction CNS seeks.

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To start, CNS’s requested mandatory injunction would harm the overall
administration of justice in Ventura Superior Court insofar as vital personnel
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CNS attempts to create an “even more pronounced” public interest in access
cases by noting “the press serves as the surrogate of the public.” (Mot. at 23.) This
is a non-starter. The press has no greater right to access than any other member of
the public. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S. Ct. 1306 55
L. Ed. 2d 570 (1978)
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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

resources would need to be diverted from other areas of the court’s judicial

2

administration system. There is absolutely no funding available to hire additional

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staff to accommodate CNS’s request. (Sherman Decl. ¶ 15.) Indeed, each and every

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department of Ventura Superior Court has been forced through budget cuts to

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operate on less than full staffing capacity. (See id. ¶ 5.) That means that each and

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every department already needs more resources that it presently has. To require

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Ventura Superior Court to pull resources from those other departments to

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accommodate CNS’s request not only will put CNS’s interests improperly above the

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interests of every other member of the public, but it also will necessarily and

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negatively impact the administration of justice in those departments.
Moreover, CNS’s requested mandatory injunction would harm the public’s

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confidence in the court system. Requiring Ventura Superior Court to provide “same-

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day access”—either through rushed processing of newly filed complaints, or through

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partial processing of those complaints8—would dramatically increase the likelihood

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of processing errors and with no possibility of quality control. (Kanatzar Decl. ¶ 34.)

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Documents might be misplaced; file numbers might be mistakenly switched; funds

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might be lost, stolen, or misfiled. (Id.) If nothing else, the public expects its courts

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to handle responsibly the materials it is given.

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Likewise, CNS’s requested mandatory injunction would harm individual

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litigants’ interests in having their documents properly managed by Ventura Superior

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Court. CNS suggests it could have “behind the counter” access to received but not

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yet filed complaints to avoid any burden on court staffing resources. (See Compl.

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¶ 1; Mot. at 3; Gardner Decl. ¶ 22.) But Ventura Superior Court has an obligation to

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its litigants to ensure that confidential information—including name change petitions

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and fee waiver requests—remain confidential. (Kanatzar Decl. ¶ 37.) Similarly,

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27
28

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CNS alleges that in June 2009, Ventura Superior Court agreed to make newly
filed complaints available “after some processing but before the complaint had been
fully processed . . . .” (Compl. ¶ 24.) That is untrue. For the very same reasons
articulated here, Ventura Superior Court never agreed to provide CNS with partially
processed complaints. (Kanatzar Decl. ¶ 21.)
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Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

new filings often are accompanied by filings fees, which usually come by cash or

2

check. (Id. ¶ 38.) Those funds are subject to strict cash handling and audit

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procedures designed to ensure that litigants’ monies remain secure. (Id.) Allowing

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access behind the clerk’s counter would compromise these established security

5

procedures.

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Finally, CNS’s requested mandatory injunction would create a slippery slope

7

that puts Ventura Superior Court—and potentially every other court in the state and

8

the nation—at the mercy of CNS’s ever-changing business plan. CNS admits that its

9

determination of what is “newsworthy” is governed entirely by CNS’s own

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preferences. (See Compl. ¶ 15; Krolak Decl. ¶ 3.) Right now CNS seeks access to

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only new civil unlimited complaints now; it may later determine (in its sole

12

discretion) that other types of filings are “newsworthy” (id.), and may seek “same-

13

day access” to those. Indeed, at some point, CNS may contend that “same-day

14

access” is no longer sufficient; it must be “within the hour” access. All these harms

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to the public interest will only be magnified and compounded.

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II.

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UNDER ANY CIRCUMSTANCE, A BOND IS REQUIRED.
There are important reasons why Rule 65(c) of the Federal Rules of Civil

Procedure provides that a “court may issue a preliminary injunction or a temporary
restraining order only if the movant gives security in an amount that the court
considers proper” (emphasis added), and that it may be reversible error to issue an
injunction without such security. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174
F.3d 411, 421 (4th Cir. 1999).
None of CNS’s cases support a nominal bond—much less a waived bond—
here. Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005)
(affirming injunction with $50,000 bond); Jorgensen v. Cassiday, 320 F.3d 906, 919
(9th Cir. 2003) (affirming injunction without additional bond where the funds at
issue in the injunction were held in sequestration by the court); Tradition Club

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- 22 -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)

1

Assocs., LLC v. Tradition Golf Club, No. EDCV 08-1581, 2008 WL 5352927 at *6

2

(C.D. Cal. Dec. 18, 2008) (ordering $2500 bond even where enjoined party “state[d]

3

it will suffer little injury, if any at all, from the entry of an injunction,” and the court

4

still ordered a $2500 bond); Doctor John’s, Inc. v. City of Sioux City, 305 F. Supp.

5

2d 1022, 1043-44 (N.D. Iowa 2004) (waiving bond in case of quintessential censure

6

of free speech where “City has not pointed to any evidence supporting a contention

7

that the City will suffer compensable economic ‘secondary effects’ if its amended

8

ordinances are improvidently enjoined”).9

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Moreover, as detailed above, the mandatory injunctive relief CNS seeks will

10

result in substantial financial and practical harm to Ventura Superior Court. To

11

comply, and not otherwise harmfully affect the administration of justice to its

12

litigants, Ventura Superior Court would be compelled to increase its staff resources

13

at a time when budget constraints have forced it to cut them. Thus, if the Court were

14

to issue such an injunction, a sizeable bond should be required.
CONCLUSION

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CNS’s Motion for Preliminary Injunction should be denied.
Dated: October 31, 2011

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Respectfully submitted,
JONES DAY

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By: /s/ Robert A. Naeve
Robert A. Naeve

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

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LAI-3152540

9

CNS citation to the unpublished Texas decision it procured a couple years
ago does not justify a nominal or waived bond here, either. Jackson, 2009 WL
2163609 at **2-5. There, the court ordered a $1000 bond without any discussion of
the relevant authorities or facts. Id. Much like the rest of that opinion, the court’s
order on this point is not persuasive authority.
- 23 -

Deft’s Opp. to Plf’s Mot. for Prelim. Inj.
Case No. CV 11-08083 R (MANx)