Herson et al v. City of San Carlos

Filing 45

ORDER by Judge Marilyn Hall Patel denying 44 Ex Parte Application for order shortening time; Motion to dissolve TRO to be heard 1/11/2010 at 2:00 pm; (awb, COURT STAFF) (Filed on 11/25/2009)

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David S. Rosenbaum, Esq., SBN. 151506 MCDOWALLwCOTTER, A.P.C. 2070 Pioneer Court San Mateo, CA 94403 Tel: [phone]; Fax: [phone] [e-mail] Randal Morrison, Esq., SBN: 126200 Sabine & Morrison 110 Juniper Street PO Box 531518 San Diego, CA 92153-1518 Tel: [phone]; Fax: [phone] [e-mail] Attorneys for Defendant, City of San Carlos UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION JEFFREY HERSON, an individual, EAST BAY OUTDOOR, INC., a California Corporation Plaint iffs, vs. CITY OF SAN CARLOS, et al., Defendants. Case No.: 3:09-cv-04187 MHP EX PARTE APPLICATION BY DEFENDANT CITY OF SAN CARLOS TO SHORTEN TIME FOR HEARING ON CITY OF SAN CARLOS MOTION TO DISSOLVE TRO and ORDER TO SHORTEN TIME [Local Rule 6-3] __________________________________ Date: Time: Dept: 15 Defendant, City of San Carlos hereby Applies to this Court for an Order Shortening time for Hearing on Motion to Dissolve Temporary Restraining Order issued against it. The City

-1EX PARTE APPLICATION BY DEFENDANT CITY OF SAN CARLOS TO SHORTEN TIME FOR HEARING ON CITY OF SAN CARLOS MOTION TO DISSOLVE TRO and ORDER TO SHORTEN TIME 3:09-cv-04187 MHP

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respectfully requests December 7, 2009 as the date for hearing. Moving papers by the City and Opposition papers from Plaintiff have already been filed. Defendant's counsel are not available on December 10 or 11, 2009. (1) Reasons for the requested shortening of time: At present, the City of San Carlos is the subject of a Temporary Restraining Order issue October 16, 2009. The City has filed a Motion to Dissolve the Temporary Restraining Order. The Temporary Restraining Order and its hearing were pursuant to Notice. A Preliminary Injunction hearing has not been set. The City has filed Motion for Summary Judgment to be heard on January 11, 2010. Since the hearing on TRO was conduct with Notice, a Motion to Dissolve or Modify, is not subject to the "Two Days Notice" proscription under FRCP 65(b): "(4) Motion to Dissolve. On 2 days' notice to the party who obtained the order without notice--or on shorter notice set by the court--the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires." Accordingly, the Motion to Dissolve is subject to Local Rule 7-2 time requirement of 35 days. The City, it compliance with the Court's directive to process plaintiff's application for a "Pole Sign" with deliberate speed, continues to expend significant human resources (which incorporates time and money) in evaluating the application, assessing its completeness or lack

19 thereof, and issuing responses to identify the incomplete parts. Likewise, in order to comply with 20 21 22 23 24 25 delivery o f a complete application, Plaintiff incurs time and money. The City, in its Motion to Dissolve the TRO, raises the question with the court as to whether, due to recent changes in the City Ordinance regarding issues of content, and its longstanding ban on Billboard Structures (note Plaintiffs' application uses the prose of "Pole Sign"

-2EX PARTE APPLICATION BY DEFENDANT CITY OF SAN CARLOS TO SHORTEN TIME FOR HEARING ON CITY OF SAN CARLOS MOTION TO DISSOLVE TRO and ORDER TO SHORTEN TIME 3:09-cv-04187 MHP

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but the schematic dimensions of a Billboard), whether the TRO has been rendered moot, and if so, would this process which is using resources on both sides of the case. By hearing the Motion to Dissolve earlier that the standard time for hearing, the Court can instruct the parties as to whether to continue proceeding with the application process or to stop. If it is the latter, the parties then stop wasting the resources and money needed to proceed with the application. (2) Efforts the City has made efforts to obtain a stipulation to the time change: On Thursday November 19, 2009, Randall Morrison sent an email to Plaintiff Counsel, Alan Herson, asking if he would stipulate to having the hearing on Nov. 23 or 30. Mr. Herson responded that he would not agree to those dates, suggesting Dec. 21 or January 11, 2010 (the date of the Motion for Summary Judgment.) True and correct copies of the email transmissions are attached hereto as Exhibit "A". (3) The substantial harm or prejudice that will occur if the Court does not change the time: The City is subject to a TRO; this is a burden in and of itself. The harm is that the City is continuously processing an application which may be moot. This is burden on the staff, has financial ramifications, and delays the processing of other applications. (4) (i) Describes the moving party's compliance with Civil L.R. 37-1(a): not applicable this is not a sanctions request or discovery dispute. (5) Disclose all previous time modifications in the case: one time modification was granted

19 to Enlarge time for Filing and Expand Scope of a supplemental briefing request of the court. The 20 21 22 23 24 25 Motion for Summary Judgment was the ultimate brief filed. It was timely filed pursuant to the Court's Order granting Enlargement: (6) Describe the effect the requested time modification would have on the schedule for the case: The modification of time will not effect the schedule of the case. Presently, Case

-3EX PARTE APPLICATION BY DEFENDANT CITY OF SAN CARLOS TO SHORTEN TIME FOR HEARING ON CITY OF SAN CARLOS MOTION TO DISSOLVE TRO and ORDER TO SHORTEN TIME 3:09-cv-04187 MHP

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Management Conference is set for December 21, 2009 and Motion for Summary Judgment is set for Jan. 11, 2010. This hearing does not effect that scheduling. . Dated: November 20, 2009

RESPECTFULLY SUBMITTED, MCDOWALLwCOTTER
By: ____/s/____________________________ David S. Rosenbaum, Attorney for Defendant, City of San Carlos

Having considered Defendant, City of San Carlos's ex parte application to shorten time for hearing of Motion to Dissolve Temporary Restraining Order: IT IS HEREBY ORDERED that -The City of San Carlos Motion to Dissolve Temporary Restraining Order shall come on for January 11, 2010 at the same time as its motion for summary judgment. Defendants shall hearing on December 7, 2009. comply with the outstanding order. 11/ __ 2009 Dated:_____24/_______________

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-4EX PARTE APPLICATION BY DEFENDANT CITY OF SAN CARLOS TO SHORTEN TIME FOR HEARING ON CITY OF SAN CARLOS MOTION TO DISSOLVE TRO and ORDER TO SHORTEN TIME 3:09-cv-04187 MHP

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David S. Rosenbaum
From: Sent: To: Subject: Randal Morrison [[e-mail]] Thursday, November 19, 2009 4:49 PM [e-mail]; David S. Rosenbaum; Stephanie Zeller Fw: Re: San Carlos motion to dissolve TRO

Randal R. Morrison Sabine & Morrison 110 Juniper Street PO Box 531518 San Diego CA 92153-1518 Tel: [phone] Fax: [phone] Email: [e-mail] --- On Thu, 11/19/09, Alan Herson <[e-mail]> wrote: From: Alan Herson <[e-mail]> Subject: Re: San Carlos motion to dissolve TRO To: "Randal Morrison" <[e-mail]> Date: Thursday, November 19, 2009, 3:55 PM Randal, It is best for the City and Plaintiffs to get this over with so that the court can issue the preliminary injunction and the sign can go up as soon as possible. I will be filing an opposition to your motion (your motion really being an opposition to the motion for preliminary injunction) on Friday. In that opposition, I will request that the court hear this matter on either December 21 or January 11, when the parties will be before the court on other matters. That is the most efficient use of court time and time for the parties. This is particularly important for the City, since, in the end, it will be paying not only your fees, but my fees as well. Alan

--- On Thu, 11/19/09, Randal Morrison <[e-mail]> wrote: From: Randal Morrison <[e-mail]> Subject: San Carlos motion to dissolve TRO To: [e-mail] Cc: [e-mail], [e-mail], [e-mail] Date: Thursday, November 19, 2009, 3:30 PM Mr. Herson: The City of San Carlos is eager to have a hearing and ruling on the motion to dissolve the TRO, so that your
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people and the city people waste no more time processing the billboard permit application. Please advise as to which of the following dates you prefer for the hearing: Monday 11/23, or any day during the week beginnning 11/30. As an easier alternative, we offer to have both sides stipulate to dissolving the TRO, and then file the stip with a request for an order thereon. Kindly advise as to your preference. Randal R. Morrison Sabine & Morrison 110 Juniper Street PO Box 531518 San Diego CA 92153-1518 Tel: [phone] Fax: [phone] Email: [e-mail]

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