Courthouse News Service v. Michael Planet

Filing 81

OBJECTION in opposition re: MOTION to Dismiss Amended Complaint #61 to Defendant's [Proposed] Memorandum and Order Granting Defendant's Motion to Dismiss #80 filed by Plaintiff Courthouse News Service. (Attachments: #1 Exhibit 1)(Matteo-Boehm, Rachel)

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1 Rachel E. Matteo-Boehm (SBN 195492) 2 rachel.matteo-boehm@bryancave.com Roger Myers (SBN 146164) 3 roger.myers@bryancave.com 4 Leila C. Knox (SBN 245999) leila.knox@bryancave.com 5 BRYAN CAVE LLP 6 560 Mission Street, 25th Floor San Francisco, CA 94105-2994 7 Telephone: (415) 675-3400 8 Facsimile: (415) 675-3434 0:" 0", Om -'N LL. ." Ie ,,-I-~ ...J"''' ...IN,,, w"':c( ~~u 00: I- z(/) 0 0 '" "' >-z0:00 w-Z "' -c "'0: ~LL eZ <0'" .,,(/) 9 Jonathan G. Fetterly (SBN 228612) 10 j on.fetterly@bryancave.com BRYANCAVELLP 11 120 Broadway, Suite 300 12 Santa Monica, CA 90401-2386 Telephone: (310) 576-2100 13 Facsimile: (310) 576-2200 14 Attorneys for Plaintiff 15 COURTHOUSE NEWS SERVICE 16 IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 17 18 19 Courthouse News Service, Case No. CV11-08083 R (MANx) 20 PLAINTIFF COURTHOUSE NEWS SERVICE'S OBJECTIONS TO DEFENDANT MICHAEL PLANET'S [PROPOSED] MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS Plaintiff, 21 vs. 22 23 24 Michael Planet, in his official capacity as Court Executive Officer/Clerk of the Ventura County Superior Court, Defendant. 25 26 27 28 213933.1 PLAINTIFF'S OBJECTIONS TO PROPOSED ORDER SUBMITTED BY DEFENDANT Case No. CVII-08083 R (MANx) 1 Plaintiff Courthouse News Service ("Courthouse News") respectfully objects 2 as follows to the [Proposed] Memorandum and Order Granting Defendant's Motion 3 to Dismiss Amended Complaint lodged on August 26, 2014 by Defendant Michael 4 Planet in his official capacity as Court Executive Officer/Clerk of the Ventura 5 County Superior Court ("Defendant's Proposed Order") (ECF #80-1). 6 In its August 18,2014 ruling from the bench, the Court directed counsel to 7 submit an order "consistent with" that ruling. Similarly, in its subsequent minute 8 order, the Court stated that it had granted Defendant's motion to dismiss "for the 9 reasons as stated on the record" and that counsel should lodge a proposed order 10 "consistent with the Court's ruling." 0:'1" Om Om --IN u, , '" :1:0 D..I-~ ....J"'.... ....JNm w 1-- « ~~o 11 As evidenced by the transcript of the August 18, 2014 proceedings, a copy of 12 which is attached hereto as Exhibit 1 (hereinafter "Transcript"), Defendant's 13 Proposed Order goes well beyond the Court's ruling and repeats many arguments 00: Zoo 0 0 '" >-z- I- <JJ 0:00 (lJ-Z <JJ", <JJo: ~u. oZ co'" ",00 14 and assertions made in his moving and reply papers that were not among "the 15 reasons ... stated on the record" for the Court's ruling, including Defendant's 16 characterizations, and mischaracterizations, of authority the Court did not discuss on 17 the record. 18 In addition, page 2, lines 23-27 of Defendant's proposed order 19 mischaracterizes the relief sought in Courthouse News' Amended Complaint, in an 20 attempt to make it appear that Courthouse News seeksaccess to complaints before 21 they are filed. This tactic - which Defendant also used in his moving and reply 22 papers - rests on Defendant's attempt to redefine "filed" and his argument that a 23 complaint is unfiled until it is processed, even if that is days or weeks after the 24 complaint is received by the court. 25 26 27 28 Consistent with these objections, Courthouse News respectfully requests that Defendant's Proposed Order be amended as follows: Page 2, lines 23-27: Strike the entire sentence beginning with the phrase "The Amended Complaint ..." and replace it with the following sentence: "In the PLAINTIFF'S OBJECTIONS TO PROPOSED ORDER SUBMITTED BY DEFENDANT Case No, CVIl-08083 R (MANx) I 1 Court's view, the issue in this case is whether the public and CNS has a First 2 Amendment right to review civil complaints on the same day they are received by 3 VSC clerks before these complaints are processed, filed, and entered into the 4 5 Court's official records." (see Transcript, page 7, lines 24-25 and page 8, lines 1-3). Page 3, lines 10-28: Strike paragraphs 2, 3 and 4 of the "Facts" section of 6 Defendant's Proposed Order as inconsistent with the Court's August 18 ruling. 7 Page 4, lines 12-28; page 5, lines 1-4: Strike paragraphs 1 and 2 of the 8 "Analysis" section of Defendant's Proposed order as inconsistent with the Court's 9 August 18 ruling. Replace these paragraphs with the following: "VSC has always 10 provided access to civil complaints. In the Court's view, there is no issue as to if "'..- Om Om -'N u.. '" Io a.f-~ --,"'..--,Nm w ...: -c ~~o 0", f- 0 z'" 0 ..: VJ >-z- 11 access will be granted, but the issue is when access must be given." (see Transcript, 12 page 7, lines 14-16). 13 Page 5, lines 11-28: Strike paragraphs 4, 5 and 6 of the "Analysis" section of 14 Defendant's Proposed order as inconsistent with the Court's August 18 ruling. "'00 ID-Z VJ -c VJ", ~u. oZ "'..: ",'" 15 Replace paragraph 5 with the following sentence: "Although CNS argues the Ninth 16 Circuit already decided that CNS has stated a viable claim for violation of this First 17 Amendment right, this Court disagrees. The Ninth Circuit only determined that this 18 Court should not abstain from hearing the case. The Ninth Circuit explicitly stated 19 that it was making no decision on the merits, exactly what a 12(b)( 6) motion is, a 20 21 motion on the merits." (see Transcript, page 7, lines 17-23). Page 6, lines 1-15: Strike paragraph 7 of the "Analysis" section of 22 Defendant's Proposed order as inconsistent with the Court's August 18 ruling. 23 Replace with the following: "The Ninth Circuit relies on the experience and logic 24 test enunciated in Press Enterprise Company v. Superior Court, 464 U.S. 501 25 (1984) to determine the extent of the right of access to judicial documents. Under 26 the experience and logic test, the court examines (1) whether the proceeding has 27 historically been open to the public and (2) whether the right of access plays an 28 essential role in the proper functioning of the judicial process and the government as 2 PLAINTIFF'S OBJECTIONS TO PROPOSED ORDER SUBMITTED BY DEFENDANT Case No. CVII-08083 R (MANx) 1 a whole." (see Transcript, page 8, lines 8-17). 2 Page 6, lines 16-28; page 7, lines 1-28: Strike paragraphs 8, 9, 10 and 11 of 3 the "Analysis" section of Defendant' s Proposed order as inconsistent with the 4 Court's August 18 ruling. Replace with the following: "CNS alleges that there is a 5 tradition of allowing same-day access to complaints before they are processed and 6 has submitted voluminous amounts of documents that it requests this Court to take 7 judicial notice thereof. There has not been a long tradition of same-day access to 8 complaints. Justice Oliver Wendell Holmes, as part of the Massachusetts Supreme 9 Court, held that civil complaints are not even proceedings in open court and that the 10 reporting privilege does not attach to them. Cowley v. Pulsifer, 137 Mass. 392 "''< 00) 00) --'''I u, • '" IO o..l-~ 11 (1884). Regardless of whether this is currently good law, it shows there is not a 12 long tradition of same-day access to complaints for the press. Moreover, many of ...J"''< ...JNO) W 1-- « ~~o O '" 1-0 Z(I) 0 '" >-z- (J) 13 the state statutes that provide access to complaints that CNS seeks to have this Court 14 take judicial notice of only contemplate making the case file available to the public. "'00 m-z-c (J) (J)", ill.. oZ <0'" ",(I) 15 None of these require same-day access before a case file has even been created." 16 (see Transcript, page 8, lines 18-25; page 9 lines 1-13). 17 Page 8, lines 1-28; page 9, lines 1-12: Strike paragraphs 12 and 13 of the 18 "Analysis" section of Defendant's Proposed order as inconsistent with the Court's 19 August 18 ruling. Replace with the following: "This experience comports with 20 logic. States have a compelling interest to safeguard unprocessed documents from 21 theft and damage and protect the privacy interests of third parties. Bruce v. 22 Gregory, 65 Cal. 2d 666 (1967). Without some minimal processing by the clerk it is 23 impossible to ensure the integrity of the filed complaints. Moreover, as CNS notes 24 in its exhibit to its complaint, that many of the courts that provide same-day access 25 to complaints only do so after the clerk has either scanned the complaint or 26 photocopied it. This is logical to make sure that integrity of the documents is not 27 compromised. Finally, many courts have a cutoff time, usually two hours to half an 28 hour before the end of day, wherein complaints are received. That time will not be 3 PLAINTIFF'S OBJECTIONS TO PROPOSED ORDER SUBMITTED BY DEFENDANT Case No. CVII-08083 R (MANx) 1 available for same-day review. Although many courthouses allow access to 2 complaints before they are fully processed, most either scan or photocopy the 3 complaint and assign a case number before allowing access." (see Transcript, page 4 5 9, lines 14-25; page 10, lines 1-10). Page 9, lines 15-16: Strike the phrase "and a hard or electronic copy has been 6 made accessible to the public" in paragraph 14 of the Analysis section as 7 inconsistent with the Court's August 18 ruling. Replace with the following: "and 8 making either a hard or electronic copy." (see Transcript, page 10, lines 13-14). 9 Page 9, lines 17-28: Strike paragraph 15 of the "Analysis" section of 10 Defendant's Proposed order as inconsistent with the Court's August 18 ruling. 0:" Om Om -'N LL. , in :1:0 "- .... ~ 11 Replace with the following: "As a matter of law, CNS does not have a First 12 Amendment right to access civil complaints before this minimal processing has been --J"''' --JNm W~q;; ~~u 00: ....0 Z(fJ ° '" '" "'''' "'0: >-z0:0° co-z ~LL. 13 completed." (see Transcript, page 10, lines 18-20). 14 Page 10, lines 1-11: Strike paragraph 16 of the "Analysis" section of 15 Defendant's Proposed order as inconsistent with the Court's August 18 ruling. oZ <0'" ",(fJ 16 17 Dated: August 27,2014 BRYAN CAVE LLP 18 By: /s/ Rachel E. Matteo-Boehm Rachel E. Matteo-Boehm Attorneys for Plaintiff COURTHOUSE NEWS SERVICE 19 20 21 22 23 24 25 26 27 28 4 PLAINTIFF'S OBJECTIONS TO PROPOSED ORDER SUBMITTED BY DEFENDANT Case No. CVII-08083 R (MANx)

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