Courthouse News Service v. Michael Planet

Filing 76

REPLY in Support of Request for Judicial Notice filed by Plaintiff Courthouse News Service. (Matteo-Boehm, Rachel)

1 Rachel E. Matteo-Boehm (SBN 195492)
2 rachel;[e-mail]
Roger R. Myers (SBN 146164)
3 [e-mail]
4 Leila C. Knox (SBN 245999)
[e-mail]
5 BRYAN CAVE LLP
6 560 Mission Street, 25th Floor
San Francisco, CA 94105-2994
7 Telephone: [phone]
8 Facsimile: [phone]

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9 Jonathan G. Fetterly (SBN 228612)
10 [e-mail]
BRYAN CAVE LLP
11 120 Broadway, Suite 300
12 Santa Monica, CA 90401-2386
Telephone: [phone]
13 Facsimile: [phone]
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Attorneys for Plaintiff
15 COURTHOUSE NEWS SERVICE

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IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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19 Courthouse News Service,

Case No. CVII-08083 R (MANx)

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PLAINTIFF COURTHOUSE NEWS
SERVICE'S REPLY IN SUPPORT
OF REQUEST FOR JUDICIAL
NOTICE IN SUPPORT OF
OPPOSITION TO MOTION TO
DISMISS AND REQUEST TO
STRIKE ARGUMENT IN
DEFENDANT'S "RESPONSE"

Plaintiff,

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vs.
Michael 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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Date: August 18,2014
Time: 10 a.m.
Judge: Hon. Manuel L. Real

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PLAINTIFF'S

REPLY IN SUPPORT OF REQUEST FOR ruDICIAL NOTICE
Case No, CVII-08083 R (MANx)

1

Together with its Opposition to Defendant Michael Planet's ("Defendant")

2 Motion to Dismiss ("Opposition") (ECF #66), Plaintiff Courthouse News Service
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("Courthouse News" or "CNS") filed a Request for Judicial Notice asking the Court

4 take judicial notice of numerous state statutes, court rules, and constitutional
5 provisions pursuant to Federal Rule of Evidence 201 ("RJN") (ECF# 67).
6

Defendant did not oppose or object to the RJN. Instead, he filed a "response"

7 in which he states, in the opening paragraph, that he "agrees that this Court can (and
8 should) take judicial notice of the statutes and rules cited in CNS's Request to Take
9 Judicial Notice." (Defendant's Response to Plaintiff's Request for Judicial Notice,
10 ECF #71, at 1:20-25) ("Response") (emph. added). The remainder of the Response,
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11 including Exhibits A and B, consists of more than 23 single-spaced pages of
12 argument as to why, according to Defendant, the statutes, rules and constitutional

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13 provisions included in the RJN do not support Courthouse News' Opposition but

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14 rather support his Motion to Dismiss. Defendant's Response then goes on to cite

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15 and discuss numerous other authorities that he contends also support his Motion to

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16 Dismiss.
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The only portion of the Response that is even remotely procedurally proper is

18 the opening paragraph (1 :20-25). The Court should disregard and strike the
19 remaining portions of the Response, including Exhibits A and B.
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Although Courthouse News' Opposition referenced the authorities cited in its

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RJN, the RJN itself did not discuss those authorities or otherwise include legal

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argument as to their proper interpretation, because it would have been improper to

23· do so in an RJN. See Ortega v. J.B, Hunt Transport, Inc" 2013 U.S, Dist. LEXIS
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160582, *8-9 (C.D. Cal. Oct. 2, 2013) (granting a request for judicial notice as to a

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recent court opinion, but denying judicial notice of the arguments regarding the

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decision and striking the arguments from the request for judicial notice) (overruled

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on other grounds); Barsch v, O'Toole, 2007 U.S. Dist. LEXIS 86575, *7 (N.D, Cal.

28 Nov. 26,2007) (striking portion ofRJN that contained "improper argument").
2
PLAINTIFF'S

REPLY IN SUPPORT OF REQUEST FOR JUDICIAL NOTICE
Case No. CVII-08083 R (MANx)

1

In contrast, Defendant - presumably in an attempt to avoid this Court's page

2 limit for reply memoranda - presents a litany of legal arguments in his Response
3 that are irrelevant to and improper for the Court to consider in ruling on the RJN.
4

To the extent Defendant is seeking judicial notice of the rules and statutes

5 cited in Exhibit B to the Response, such request is improper as part of a "response"
6 to an opposing party's request for judicial notice. And for the same reasons detailed
7 in Courthouse News' concurrently filed Opposition to Defendant's RJN, which is
8 incorporated herein by reference, judicial notice of Defendant's arguments in his
9 Response, including in Exhibits A and B, would be improper.

1

Such arguments

10 should have been made, if at all, in Defendant's reply memorandum in support of
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11 his motion to dismiss (ECF #70).

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The problem, of course, is that Defendant could not have fit all of this

13 additional argument into his reply memorandum because it is already 25 pages long,
14 the maximum number of pages allowed for a memorandum of points and
15 authorities. Central District Local Rule 11-6. The argument in the Response thus

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16 constitutes argument in excess of that page limit and should be stricken for the
17 additional ground that it exceeds the page limit set forth in Local Rule 11-6.2
18

In ruling on Courthouse News' RJN, the Court need only consider whether

19 the statutes and rules referenced in the RJN are appropriate for judicial notice.
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Because they indisputably are, the Court should grant CNS' s request for judicial

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In addition, CNS disputes Defendant's arguments regarding his interpretation of
these statutes and rules, which alone is sufficient to deny any perceived request for
judicial notice. See Fed. R. Evid. 201(b) ("The Court may judicially notice a/act
25 that is not subject to reasonable dispute.") (emph. added).

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1

Although L.R. 11-6 makes an exception to the 25-page limit for "exhibits,"
allowing a party to evade the page limit simply by putting argument into a document
27 characterized as an exhibit is contrary to the intent of the rule and should not be
permitted. See L.R. 11-7 ("Appendices shall not include any matters which
28 properly belong in the body of the memorandum of points and authorities").
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PLAINTIFF'S

REPLY IN SUPPORT OF REQUEST FOR JUDICIAL NOTICE
Case No. CVII-08083 R (MANx)

1 notice and strike Defendant's entire Response except for page 1, lines 20 through
2

25.

3 Dated: August 8, 2014

BRYAN CAVB LLP

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By:

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/s/ Rachel E. Matteo-Boehm
Rachel E. Matteo-Boehm
Attorneys for Plaintiff
COURTHOUSE NEWS SERVICE

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PLAINTIFF'S

REPLY IN SUPPORT OF REQUEST FOR JUDICIAL NOTICE
Case No. CVII-08083 R (MANx)