Courthouse News Service v. Michael Planet

Filing 77

NOTICE OF LODGING filed [Updated Proposed] Order Denying Defendant's Motion to Dismiss Amended Complaint re MOTION to Dismiss Amended Complaint #61 (Attachments: #1 Exhibit A-[Updated Proposed] Order)(Matteo-Boehm, Rachel)

Exhibit A

1 Rachel E. Matteo-Boehm (SBN 195492)
2 [e-mail]
Roger Myers (SBN 146164)
3 [e-mail]
4 Leila C. Knox (SBN 245999)
[e-mail]
5 BRYANCAVELLP
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 j [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
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IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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Case No. CVII-08083

Courthouse News Service,
Plaintiff,

[UPDATED PROPOSED] ORDER
DENYING DEFENDANT'S
MOTION TO DISMISS AMENDED
COMPLAINT

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vs.
Michael Planet, in his official capacity as
Court Executive Officer/Clerk of the
Ventura County Superior Court,

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

Defendant.

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[UPDATED PROPOSED]

ORDER DENYING MOTION TO DISMISS

Case No. CVII-08083

R (MANx)

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The June 24,2014, Motion to Dismiss Amended Complaint of Defendant

2 Michael Planet, in his official capacity as Court Executive Officer/Clerk of the
3 Ventura County Superior Court ("Defendant), came on for hearing on August 18,
4 2014. Having considered the papers submitted by the parties, the arguments of
5 counsel, and good cause appearing, the Court hereby ORDERS as follows:
(1)
Defendant's Motion to Dismiss Amended Complaint is DENIED. The
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7 Court finds that Plaintiff Courthouse News Service has stated a plausible First
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Amendment claim for relief.
(2)

As a preliminary matter, the Ninth Circuit has recognized that Plaintiff

has stated a plausible claim for relief: "[T]here is no question that CNS itselfhas
alleged a cognizable injury caused by Ventura County Superior Court's denial of
timely access to newly filed complaints."

Courthouse News v. Planet, 750 F.3d 776,

788 (9th Cir. 2014). As such, the doctrines of "law of the case" and the "rule of
mandate" bar Defendant's argument that unlimited civil complaints filed in the
Ventura County Superior Court are not "judicial records" to which a right of access

15 attaches under the First Amendment "until they are considered by the court and
16 made the subj ect of some judicial decision." Def.' s MP A 10-11.
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(3)

Even if the law of the case and the rule of mandate did not bar

18 Defendant's motion, the Court finds that Defendant has failed to show, as a matter
19 of law, that Plaintiff has not stated a plausible claim for relief.
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(4)

Moreover, the Court further finds that as a matter of law, there is a

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presumptive First Amendment right of access to newly filed civil complaints from

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the time of filing, irrespective of whether the complaint has been processed,

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reviewed, and/or entered into the court's official records. Further, the court finds

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that as a matter of law, there is a presumptive First Amendment right of access

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irrespective of whether the court has taken action in the case or the defendant has
been served. The First Amendment right of access to newly-filed complaints is
confirmed by application of the "experience" and "logic" analysis. The two prongs
of this analysis are not "separate inquiries," In re Copley Press, 518 F.3d 1022, 1026
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[UPDATED PROPOSED] ORDER DENYING MOTION TO DISMISS

Case No. CVII-08083

R (MANx)

1 n.2 (9th Cir. 2008), but rather are "complementary considerations."

Press-

2 Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986). The tradition need only be
3 long enough so that the "tradition of accessibility implies the favorable judgment of
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experience."

Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605 (1982)

5 (Brennan, J., concurring). In this case, the allegations in Plaintiffs Amended
6 Complaint and the authorities provided by Plaintiff in its opposition to the motion to
,

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dismiss and accompanying request for judicial notice establish a strong national
tradition of open access to civil court complaints from the time of filing. There is
also a well-established logic in access to newly-filed complaints, as demonstrated by
the authorities cited in Plaintiff s opposition. The judicial system works best if
complaints are open to public scrutiny from the time of filing.
(5)

Where the First Amendment right of access attaches, the burden is on

the party seeking to restrict access - in this case, Defendant - to overcome that
presumptive right by demonstrating an "'overriding [governmental] interest based

14 on findings that closure is essential to preserve higher values. ,,, Courthouse News,
15 750 F.3d at 793 n.9 (quoting Leigh v. Salazar, 677 F.3d 892, 898 (9th Cir. 2012));
16 accord, e.g., Oregonian Pub. Co. v. United States District Court, 920 F.2d 1462,
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1466-67 (9th Cir. 1990) ("It is the burden of the party seeking closure ... to present

18 facts supporting closure and to demonstrate that available alternatives will not
19 protect" his interests); Associated Press v. United States District Court, 705 F.2d
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1143, 1145 (9th Cir. 1983) ("we require that a party seeking closure of proceedings

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or sealing of documents establish that the procedure '''is strictly and inescapably

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necessary in order to protect [the interest at issue]' ... To meet this burden and

23 justify abrogating the first amendment right to access, it is necessary to satisfy three
24 separate substantive tests.") (quoting United States v. Brooklier, 685 F.2d 1162,
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1167 (9th Cir. 1982)). Defendant has not met this burden. Moreover, neither the
factual assertions in his memorandum of points and authorities nor his reference to
his prior factual contentions in the declarations he previously filed in this case may
be credited in support of his own 12(b)(6) motion to dismiss.
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[UPDATED PROPOSED] ORDER DENYING MOTION TO DISMISS

Case No. CVII-08083

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(6)

Defendant argues that delays in access to civil complaints need not

satisfy strict scrutiny, and that Plaintiff bears the burden of pleading - and cannot

3 allege facts demonstrating - that Defendant's policies relating to access to new civil
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complaints and the resulting delays in access are not reasonable time, place and

5 manner restrictions. Again, the Court disagrees. The burden of pleading and proof
6 lies with Defendant, not Plaintiff, Comite de Jornaleros de Redondo Beach v.
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Redondo Beach, 657 F.3d 936,947 (9th Cir. 2011) (en bane), and it is Defendant
who has the burden of pleading and proving that his policy and the resulting delays
in access are justified as a reasonable time, place and manner regulations. Id.
Defendant's argument that his policies and the delays in access to newly filed
complaints can be justified as a reasonable time, place and manner regulation is
contrary to the Ninth Circuit and other authorities cited in Plaintiff s opposition.
E.g., Associated Press v. Us. Dist. Ct., 705 F.2d 1143, 1145 (9th Cir. 1983).
Moreover, even if the time, place and manner analysis were appropriate here,
Defendant has not shown that his policies satisfy the Ninth Circuit's three-part test

15 for time place and manner restrictions, namely, that his policies are content-neutral,
16 narrowly tailored and allow for channels of alternate communication of the
17 information at issue, i.e., newly-filed complaints. Comite, 657 F.3d at 945.
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(7)

The Court GRANTS Courthouse News' Request for Judicial Notice

19 (ECF #67) and Supplemental Request for Judicial Notice (ECF #74).
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(8)

The Court strikes page 2, lines 6-11 and the entire column labeled as

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"Summary of Provisions" on pages 2-13 from Defendant's Request for Judicial

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Notice (ECF #72) on the grounds that those portions of Defendant's Request for

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Judicial Notice consist of legal argument not appropriate for a request for judicial

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notice. In addition, because Defendant's reply memorandum in support of his

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motion to dismiss (ECF #70) is already 25 pages long, the improper argument in
Defendant's Request for Judicial Notice also constitutes argument in excess of the
page limit for a memorandum of points and authorities set forth by Central District
Local Rule 11-6.
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[UPDATED PROPOSED] ORDER DENYING MOTION TO DISMISS

Case No, CVll-08083

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(9)

With the exception of page 1, lines 20-25 of Defendant's Response to

2 Plaintiff's Request for Judicial Notice (ECF #71), the court strikes the remainder of
3 Defendant's Response to Plaintiff's Request for Judicial Notice on the grounds that
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it consists of improper legal argument about the authorities cited in Courthouse

5 News' Request for Judicial Notice as well as improper legal argument about
6 additional authorities, and because Defendant's reply memorandum in support of his
7 motion to dismiss (ECF #70) is already 25 pages long, the improper argument in his
8 Response is also argument in excess of the page limit for a reply memorandum of
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points and authorities set forth by L.R. 11-6.
(10)

Defendant's answer or responsive pleading shall be due 14 days from

the date of this Order.

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IT IS SO ORDERED.

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13 Dated:
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,2014
The Honorable Manuel Real
Judge of the U.S. District Court
Central District of California

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[UPDATED PROPOSED] ORDER DENYING MOTION TO DISMISS

Case No. CVII-08083

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