Oracle Corporation et al v. SAP AG et al

Filing 1151

Declaration of Tharan Gregory Lanier in Support of 1150 Opposition/Response to Motion,, 1149 Opposition/Response to Motion, Declaration of Tharan Gregory Lanier in Support of Defendants' Oppositions to Oracle's Motions for Leave to File Motions for Reconsideration Regarding (1) Saved Development Costs and (2) Up-Sell and Cross-Sell Projections, and Motion for Clarification filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Related document(s) 1150 , 1149 ) (Froyd, Jane) (Filed on 5/1/2012)

EXHIBIT 4

Page 1

ANNETTE SHARLENE ELDER-EVINS, TR., Plaintiff, vs. MICHAEL J. CASEY,
et al., Defendants.
Case No: C 09-05775 SBA
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, OAKLAND DIVISION
2011 U.S. Dist. LEXIS 103080

September 12, 2011, Decided
September 13, 2011, Filed
SUBSEQUENT HISTORY: Motion granted by
Elder-Evins v. Casey, 2011 U.S. Dist. LEXIS 143290
(N.D. Cal., Dec. 12, 2011)
PRIOR HISTORY: Elder-Evins v. Casey, 2011 U.S.
Dist. LEXIS 9192 (N.D. Cal., Jan. 31, 2011)

COUNSEL: [*1] Annette Sharlene
Plaintiff, Pro se, Santa Rosa, CA.

Elder-Evins,

For Michael J. Casey, in his individual capacity and as
assistant city attorney of City of Santa Rosa, Caroline L.
Fowler, in her individual capacity and as city attorney of
City of Santa Rosa, Michael Whitaker, in his individual
capacity and as Chief Building Official of City of Santa
Rosa, Samantha K. Lynch, in her individual capacity and
as Community Development Officer of City of Santa
Rosa, Michael J. Reynolds, in his individual capacity and
as a Zoning Enforcement Officer of City of Santa Rosa,
Eric Major, in his individual capacity and as Fire
Inspector of City of Santa Rosa, Tom Schwedhelm, in his
own capacity and as "Acting Chief of Police" of City of
Santa Rosa, Daniel Shacklett, in his own capacity and as
a Police Officer of Santa Rosa Police Department, Agents
of City of Santa Rosa, Agents of County of Sonoma,
Richard Chivaro, in his individual capacity and as Chief
Counsel of State Controller, Edmund G. Brown, Jr., in
his individual capacity and as Attorney General, Office of

Attorney General, Department of Justice, State of
California, City of Santa Rosa, County of Sonoma, City
of Santa Rosa City Council, [*2] Defendants: John
Jeffrey Fritsch, City Attorney's Office, City of Santa
Rosa, Santa Rosa, CA.
For David Apostle, M.D., also known as Donald T.
Apostle, M.D., Witness: Ronald Paul Goldman, LEAD
ATTORNEY, Goldman Law Firm, Tiburon, CA.
JUDGES: SAUNDRA BROWN ARMSTRONG, United
States District Judge.
OPINION BY: SAUNDRA BROWN ARMSTRONG
OPINION

ORDER
Dkts. 107, 114, 133
The parties are presently before the Court on pro se
Plaintiff Annettee Sharlene Elder-Evins' ("Plaintiff")
"Objection to Dismissal of Dockets 40, 84, 90," which
this Court liberally construes as a motion for leave to file
a motion for reconsideration of a January 31, 2011 Order
issued by this Court ("Order of 1/31/11"). Plaintiff
operates a commercial scrap metal business on her

Page 2
2011 U.S. Dist. LEXIS 103080, *2

property. She has sued multiple defendants for their
conduct arising out of certain inspections of her property
for weed abatement and building code enforcement
purposes. Dkt. 106. In the Order of 1/31/11, the Court
dismissed portions of Plaintiff's first amended complaint
with prejudice, but permitted her to amend other portions
by filing a Second Amended Complaint ("SAC"). Id.
Relevant to Plaintiff's motion for leave are the portions of
the Order of 1/31/11 that (1) dismiss without [*3] leave
to amend Plaintiff's claims against certain state court
judges ("Judge Defendants") on the ground that Plaintiff
had not alleged facts that overcame judicial immunity;
and (2) dismiss without leave to amend Plaintiff's tort
claim against the City of Santa Rose on the ground that
Plaintiff had failed to allege facts showing she filed a
claim in compliance with the California Tort Claims Act
("CTCA") prior to instituting this action. Id.
Plaintiff's motion for leave is not a model of clarity.
Dkt. 107. Plaintiff raises many issues and objections,
such as, among other things, asserting a right to be
represented by counsel because her grandfathers lived on
Indian Reservations, protesting the purported use of
British law in the instant action, presenting her
viewpoints about justice, demanding that she is entitled to
a discharge of 'the fraudulent tax debt," maintaining that
she is a "secured party creditor" under the U.C.C., and
arguing she properly engages in weed abatement. From
her arguments, the Court is able to discern two grounds
upon which Plaintiff seeks reconsideration. First, she
appears to seek reconsideration of this Court's decision to
dismiss without leave to amend the [*4] Judge
Defendants. Id. 5, 12. While not altogether clear, Plaintiff
seems to argue that Judge Gnoss expressed a bias against
her by not holding a hearing on her claims, as she
believes that she was entitled to a "meet and confer
appointment" to discuss the parameters of the inspections
on her property and that the court was without
jurisdiction to permit the inspections. Id. at 5, 12. Second,
again while not entirely clear, Plaintiff appears to
challenge the Court's decision that she did not comply
with the CTCA, generally asserting that she made many
claims to various agencies, including the "court clerk in
Superior Court." Id. 4-5.
A party seeking reconsideration of an interlocutory
court order must first seek leave to file such a motion.
Civ. L.R. 7-9(a). The moving party must specifically
show:

(1) That at the time of the motion for
leave, a material difference in fact or law
exists from that which was presented to
the Court before entry of the interlocutory
order for which reconsideration is sought.
The party also must show that in the
exercise of reasonable diligence the party
applying for reconsideration did not know
such fact or law at the time of the
interlocutory order; or
(2) [*5] The emergence of new
material facts or a change of law occurring
after the time of such order; or
(3) A manifest failure by the Court to
consider material facts or dispositive legal
arguments which were presented to the
Court before such interlocutory order.
Civ. L.R. 7-9(b)(1),(2)&(3). The Court may summarily
deny motions that are not filed in compliance with the
Court's Local Rules. See Grove v. Wells Fargo Fin. Cal.,
Inc., 606 F.3d 577, 582 (9th Cir. 2010) (upholding
district court's denial of motion to tax costs which was
not in compliance with the court's local rules); see also
Wood v. Santa Barbara Chamber of Commerce, 705 F.2d
1515, 1519 (9th Cir. 1983) (district court did not abuse
its discretion in striking untimely affidavits in opposition
to summary judgment motion where party failed to
request extension of time or show excusable neglect).
Plaintiff has failed to satisfy the standards under
Civil Local Rule 7-9 for leave to file a motion for
reconsideration. She fails to show that any material
difference in fact or law exists from that which was
presented to the Court before entry of the Order of
1/31/2011. Civ. L.R. 7-9(b)(1). . She fails to the establish
the emergence of new [*6] material facts or a change of
law occurring after the time the Order of 1/31/2011 was
filed. Id. at 7-9(b)(2). Further, she does not demonstrate a
manifest failure by the Court to consider material facts or
dispositive legal arguments which were presented to the
Court in connection with the Order of 1/31/2011. Id. at
7-9(b)(3).
Moreover, with regard to her arguments pertaining to
Judge Gnoss, she has not shown facts overcoming
judicial immunity. Judicial immunity may be overcome
where a judge takes actions that (1) are not in the judge's
judicial capacity; and (2) are without jurisdiction. Mireles

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2011 U.S. Dist. LEXIS 103080, *6

v. Waco, 502 U.S. 9, 11, 112 S. Ct. 286, 116 L. Ed. 2d 9
(1991); see also Stump v. Sparkman, 435 U.S. 349, 356,
98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978) (immunity exists
even when a judge's actions were in error, done
maliciously and were in excess of authority). Plaintiff's
statements about Judge Gnoss' conduct do not show that
the possibility of either of the two exceptions to judicial
immunity exist. Even though Plaintiff asserts that Judge
Gnoss acted without jurisdiction in permitting the
inspections, she puts forth no specific facts or legal
authority detailing how his actions--executed within his
judicial role--of permitting inspections were performed
[*7] without jurisdiction. Therefore, Plaintiff's claims
against the Judge Defendants should be, as they have
been, dismissed without leave to amend, especially since
she has already been given an opportunity to cure the
deficiencies in her allegations, but failed to do so.
Consequently, the Court denies Plaintiff's motion on this
ground.

Court dismissed the claim without leave to amend.
Plaintiff's current assertion that she has filed many
complaints with many different agencies does establish
facts demonstrating or excusing compliance with the
CTCA requirement of filing a specific claim with the
City pertaining to her tort cause [*8] of action, and
therefore the Court denies her motion for leave on this
ground. Accordingly,

As to Plaintiff's tort claim against the City of Santa
Rosa, for the claim to be viable, Plaintiff had to file a
claim with the City under the CTCA and the City had to
act upon it. Cal. Gov. Code § 945.4. Plaintiff is required
to allege facts either demonstrating or excusing
compliance with the prerequisite of presentment of a
claim under the CTCA to the City. State of California v.
Superior Court (Bodde), 32 Cal.4th 1234, 1243, 13 Cal.
Rptr. 3d 534, 90 P.3d 116 (2004). Plaintiff failed to
allege the necessary facts, and, because she had been
given a prior opportunity to cure and failed to cure, the

2. This Order terminates Docket Nos. 107, 114, 133.

IT IS HEREBY ORDERED THAT:
1. Plaintiff's motion for leave to file a motion for
reconsideration is DENIED. Plaintiff shall file her SAC
consistent with this Court's Order of 1/31/11 within
twenty (20) days of the date of this Order. Plaintiff is
reminded of her obligation to allege facts and claims only
to the extent that she may do so in good faith. Fed. R.
Civ. P. 11. Defendants shall file their response to the
SAC within twenty (20) days of the date Plaintiff files it.

IT IS SO ORDERED.
Dated: September 12, 2011
/s/ Saundra Brown Armstrong
SAUNDRA BROWN ARMSTRONG
United States District Judge