IBiz LLC v. City of Hayward

Filing 26

STIPULATION AND ORDER re Filing of Supplemental Material. Signed by Judge Samuel Conti on 05/29/2013. (tmi, COURT STAFF) (Filed on 5/30/2013)

1 John H. Weston (SBN: 46146)
[e-mail]
2 G. Randall Garrou (SBN: 74442)
[e-mail]
3 Jerome H. Mooney (SBN: 199542)
[e-mail]
4 Weston, Garrou & Mooney
12121 Wilshire Boulevard, Suite 525
5 Los Angeles, CA 90025-1176
Telephone: [phone]
6 Facsimile: [phone]
7 Attorneys for Plaintiff IBIZ, LLC
8 MICHAEL S. LAWSON (SBN: 048172)
City Attorney
9 [e-mail]
MICHAEL G. VIGILIA (SBN: 228353)
10 [e-mail]
Assistant City Attorney
11 CITY OF HAYWARD
777 B Street, 4th Fl.
12 Hayward, CA 94541-5007
Tel: [phone]
13 Fax: [phone]
14 Attorneys for Defendant
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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18 IBIZ, LLC, a California Limited Liability
19 Company,
Plaintiff,

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vs.

CITY OF HAYWARD, a California
22 municipal corporation,
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Defendant

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Case No: CV 13 1537 SC
STIPULATION AND [PROPOSED]
ORDER RE FILING OF
SUPPLEMENTARY MATERIAL
Hrg. Date: June 21, 2013
Hrg. Time: 10:00 a.m.
Location: Crtrm. 1, 17th Floor
Judge: Samuel Conti

COME NOW PLAINTIFF IBIZ AND DEFENDANT CITY AND STIPULATE AS FOLLOWS:

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STIPULATION AND [PROPOSED] ORDER RE FILING OF SUPPLEMENTARY MATERIAL
PRG7986.doc

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On May 7, 2013, Plaintiff IBIZ, LLC (“IBiz”) filed its motion for preliminary injunction.

2 On May 21, 2013, the City filed its papers in Opposition to the Motion. Under Local Rule 7-3(d),
3 no additional memoranda, papers or letters may be filed without prior Court approval.
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STIPULATION
The parties, by and through their counsel of record, HEREBY STIPULATE, subject to the

6 approval of the Court, to the filing of the following supplementary material:
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(1) Supplemental Declaration of Michael Daniels in Support of IBiz’ Motion for
Preliminary Injunction (a true copy of which is attached hereto as Exhibit 1);
(2) Supplemental Declaration of Michael G. Vigilia in Support of Opposition to Motion for
Preliminary Injunction (a true copy of which is attached hereto as Exhibit 2).

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12 DATED: May 28, 2013

John H. Weston
G. Randall Garrou
Jerome Mooney
WESTON, GARROU & MOONEY

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By:

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/s/ G. Randall Garrou
G. Randall Garrou
Attorneys for Plaintiff IBIZ LLC
MICHAEL S. LAWSON, CITY ATTORNEY

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By:

/s/ Michael G. Vigilia
MICHAEL G. VIGILIA
Assistant City Attorney, City of Hayward
Attorney for Defendant, City of Hayward

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STIPULATION AND [PROPOSED] ORDER RE FILING OF SUPPLEMENTARY MATERIAL

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ORDER
Based on the stipulation of the parties, and good cause appearing therefore, the Court

3 hereby authorizes filing of the following supplementary material:

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Preliminary Injunction.
IT IS SO ORDERED.

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05/29/2013
DATED: _____________________

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_______________________________
UNITED STATES DISTRICT JUDGE
HON. SAMUEL CONTI

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(2) Supplemental Declaration of Michael G. Vigilia in Support of Opposition to Motion for

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Preliminary Injunction;

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(1) Supplemental Declaration of Michael Daniels in Support of IBiz’ Motion for

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STIPULATION AND [PROPOSED] ORDER RE FILING OF SUPPLEMENTARY MATERIAL

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EXHIBIT 1

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Supplemental Declaration of Michael Daniels in Support of IBiz’
Motion for Preliminary Injunction

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STIPULATION AND [PROPOSED] ORDER RE FILING OF SUPPLEMENTARY MATERIAL

1 John H. Weston (SBN: 46146)
[e-mail]
2 G. Randall Garrou (SBN: 74442)
[e-mail]
3 Jerome H. Mooney (SBN 199542)
[e-mail]
4 Weston, Garrou & Mooney
12121 Wilshire Boulevard, Suite 525
5 Los Angeles, CA 90025-1176
Telephone: [phone]
6 Facsimile: [phone]
7 Attorneys for Plaintiff IBIZ, LLC
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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11 IBIZ, LLC, a California Limited Liability
12 Company,
Plaintiff,

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vs.

CITY OF HAYWARD, a California
15 municipal corporation,
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Defendant

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Case No: CV 13 1537 SC
SUPPLEMENTAL DECLARATION OF
MICHAEL DANIELS IN SUPPORT OF
IBIZ’ MOTION FOR PRELIMINARY
INJUNCTION
Date: June 21, 2013
Time: 10:00 a.m.
Location: Crtrm. 1, 17th Floor
Judge: Samuel Conti

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I, MICHAEL DANIELS, hereby declare as follows:

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1.

I am the Managing Member of IBIZ, LLC, a California Limited Liability Company

21 (“IBIZ”), and supplement my prior declaration filed herein. I have personal knowledge of each of
22 the facts set forth below unless specifically stated only on information and belief, and, if called as a
23 witness at trial, would so testify.
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2.

By way of a written disclaimer, customers of IBiz are made aware of the fact that all

25 “reveal” methods will reveal the same result and that no method of revealing the results will
26 generate a different result from that disclosed by either of the other two methods. As a part of the
27 process of opening an account, customers are required to sign a rental agreement (a true copy of
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SUPPLEMENTAL DECLARATION OF MICHAEL DANIELS
PRG7983.DOC

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EXHIBIT “A”

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IBIZ’ Customer Rental Agreement

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SUPPLEMENTAL DECLARATION OF MICHAEL DANIELS
PRG7983.DOC

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EXHIBIT “B”

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IBiz’ Sweepstakes Rules

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SUPPLEMENTAL DECLARATION OF MICHAEL DANIELS
PRG7983.DOC

NO PURCHASE OF THE SPONSOR’S COMPUTER TIME OR ANY OTHER PRODUCT OR SERVICE IS REQUIRED
TO ENTER OR PARTICIPATE IN THIS PROMOTIONAL GAME. PARTICIPATION IN THIS PROMOTIONAL
GAME IS FREE. PURCHASE OF COMPUTER TIME OR ANY OTHER PRODUCT OR SERVICE WILL NOT
INCREASE YOUR CHANCES OF WINNING. THESE OFFICIAL RULES GOVERN ALL OF THE
SPONSOR’S PROMOTIONAL GAMES.
1.ELIGIBILITY. This promotional game is open to legal residents of the 50 states of the United States and
of the District of Columbia who are 18 years of age or older at the time of participation and who are not
ineligible as set out in these Official Rules. Void wherever prohibited by law. Employees (and members
of employees’ immediate families and residents in their households) of (the "Sponsor") and the
Sponsor’s distributors and participating retailers together with the parent companies, affiliates,
subsidiaries and advertising and promotion agencies of all of them, are not eligible to play or win.
2.SPONSORSHIP. The Sponsor of this promotional game is the independent retailer who supplies the
work station services and the platform on which the promotional game is played, and who disburses
prizes to winning participants. The Sponsor’s name is: @STORE_NAME, @STORE_ID.
3.HOW TO ENTER. The promotional game begins at 12:00 AM, EST on @START_DATE And ends at 11:59
PM EST on @END_DATE. You may purchase computer time or fill out free entry (either mail in or in
store) to enter. For each dollar of such purchase you will be awarded 100 free points to enter the
promotional game. (If you choose to reveal the award value of an entry by the entertaining monitor
display, see "How To Participate," below. ) When revealed each different point denomination is a single
entry from its own predetermined pool of entries. Full odds for each pool are listed below.
4.TO ENTER WITHOUT PURCHASE: (a) ask the Sponsor free daily entry, limited to 100 points per
person per day and usable only at the premises of that Sponsor; or (b) ask the Sponsor for an official
free entry request form, legibly hand print all of the information requested on the form and follow the
mailing instructions on the form; or (c) on a postcard or sheet of white paper no smaller than three
inches by five inches (3" x 5") by hand, print your name, address, city, state, zip code, age, telephone
number, the date you are preparing your request and the name and address of the participating retailer
at which you will redeem your free entry. Mail the hand posted official free entry request form or
handwritten free entry request (as to both) with the hand addressed envelope or hand addressed
postcard address and return address also handwritten, to the Sponsor at the following address:
Official Free Entry Request
3506 N E Greenville Blvd
Greenville, NC, 27834
No return envelope is required. Limit of 500 points per complying stamped hand written outer
envelope or complying stamped hand written postcard. Each qualifying mail in request received during
the contest period will be awarded free entries equivalent to the free entry credits that normally
accompany a purchase of $5.00 worth of computer time. Free entry requests will be disqualified for any

of: (1) ineligibility, (2) inclusion with the free entry request of any other correspondence, promotional
materials or other materials, (3) lost, late, damaged or misdirected or postage due requests, (4) requests
that in the opinion of the Sponsor are machine generated in whole or in part, including but not limited
to the stamped outer envelope or postcard, (5) requests that in the Sponsor’s opinion are not hand
written and hand addressed (both) by the person to whom the free entry is to be mailed, and (6)
requests that in the opinion of the Sponsor do not comply with these official rules. The decision of the
Sponsor regarding eligibility or disqualification of free entry requests received, will be final. A free entry
will not entitle the person requesting it or any other person, to computer time. Free entries are not
transferable from the person requesting the free entry to any other person. Free entry requests
received by the Sponsor become the Sponsor’s property upon receipt. Ineligible and noncomplying
requests will not be acknowledged.
5.HOW TO PARTICIPATE. Participation in the promotional game, whether by free entry or by purchase,
is limited to the premises of the Sponsor. You must have a valid user account with a login ID and
password, to participate. Obtaining a user account is free of charge but the participant’s government
issued photo identification document showing the participant’s age and current residence, along with
the participant’s social security number is required to open an account. (See Other Terms and
Conditions and Privacy Policy, below.) The Sponsor’s staff will instruct you how to open an account and
how to use the electronic equipment upon which the promotional game is conducted. The promotional
game entry points that you register in this way will entitle you to participate in the promotional game
at the Sponsor’s point of sale. You can find out what you have won simply by asking the point of sale
clerk at the Sponsor’s store. You can also choose to reveal your entries at the computer terminal, in one
of two ways: (1) using the controls provided, you can reveal the entry results all at one time, as a single
number that will be displayed on the monitor, or (2) you can reveal one entry at a time. If you reveal
your entries this way, a themed display will show on the monitor as the means of revealing each entry.
Your odds of winning are the same regardless of the method you choose to reveal the results of your
entries. If you have entered the promotional game by purchasing computer time, the use of
promotional game entry credits will not reduce the computer time that you have purchased. Whether
you have entered for free or by purchase, you can not use awarded credits to play or replay the
promotional game. To collect at any time, tell the Sponsor’s point of sale clerk what you have won. On
verification of that amount, the Sponsor will pay to you in currency the amount that you have won. The
Sponsor reserves the right to substitute awards of equal value in the form of merchandise, a prepaid
gift card or a check sent to you through the mail. Promotional game entries are not available from
purchase of any product or service at the Sponsor’s store, other than the purchase of computer time.
The right to receive promotional prizes cannot be assigned or transferred by the participant who is
entitled to the prizes.
6.HOW WINNERS ARE SELECTED. Resident in the computer inside the Sponsor’s computer intranet are
multiple finite deals of entries. The entries are in effect, electronic game pieces. Each electronic game
piece has an assigned value, as low as zero. Please see the official odds disclosure table for the amounts
of each prize. Each time you cause the electronic system to reveal an entry’s value the computer will
sequentially select one entry from the finite deal of entries. The specific entry pool involved is

determined by the type of reveal theme that you select and the number of points you choose to reveal
at one time. Again, see the odds table for detail. Upon such selection, the value previously assigned to
the selected entry determines what (if anything) you have won. Your participation in the game is
complete at the point of sale when the entry or entries are assigned to you. Revealing the entries’ value
is not part of the game or related to selection of winners. If you are revealing the outcome by themed
monitor display of the game piece’s value, the computer pre selects the outcome of the entertaining
display that you have selected, even in displays that appear to be interactive. As to "interactive"
displays, your actions will have no effect on the outcome. These displays are pseudo interactive, as to
the prize awarded. For the pseudo interactive displays, the full value of the entry will be revealed
immediately following the participant’s actions only if those actions are optimum. If they are not
optimum, the full value will be revealed later. For hypothetical example, in the pseudo interactive
display of five card draw poker, if the electronic game piece has a value of $1 and the reveal presents
that value as three of a kind, the reveal will display a $1 award only if the participant holds the three of a
kind. If instead the participant discards the three of a kind, the reveal will at that time show that the
participant has won nothing. The dollar which the participant actually won will be revealed later: either
by being added to the predetermined award made on the next winning entry of 25 cents or more, or if
there is none, being added directly to the numerical display of the participant’s final aggregate total for
all entries revealed. When used, the entry is removed from the deal and is not used again. The value (if
any) of the entry selected will be added to the prize award value display on the monitor of the computer
that you are using.
7.ODDS OF WINNING. See Odds at Participating Retailer.
8.OTHER TERMS AND CONDITIONS OF THE OFFICIAL RULES. This promotional game begins on the
beginning date posted above and on all workstations and ends on the earliest of (a) the ending date
posted above and on all workstations or (b) when the deal of entries is exhausted or (c) when
terminated by the Sponsor for the reasons stated below. The Sponsor reserves the right to modify
and/or terminate this promotional game and to take such other measures the Sponsor may deem
necessary or appropriate, in its sole discretion, to preserve the integrity or compliance of the
promotional game or in the event that it or associated practices or equipment become corrupted,
technically or otherwise. In such event, prizes will be awarded only from entries received prior to the
date and time of termination or modification. Participating entrants release the Sponsor, together with
(all of) the Sponsor’s parent companies, affiliated companies, subsidiary companies, and all other
businesses involved in this promotional game, as well as the employees, members, managers, officers
and directors of each, of all claims and liability related to participation in this sweepstakes promotional
game. Any promotional game notice, entry form or other writing, including writings in electronic form,
that contain an error (printing, human, technical or other) shall be deemed null and void. Technical
malfunction of the electronic equipment associated with this promotional game, voids all play on it.
Winners may be required, at the sole discretion of the Sponsor, to complete, sign and return a winner’s
disclosure form an affidavit of eligibility/liability release and where legally permissible, a publicity
release, as a condition precedent to the receipt of any prize to be awarded. All winners are subject to
disclosure of their winnings and identifying information, to the extent such disclosure is required by law

or provided for in these Official Rules. Regardless of how winners use prizes awarded to them, all such
awards are taxable income to the participant. Participants are responsible to pay all income and other
taxes due in respect of awards of any size that they receive. The Sponsor tracks such awards on an
individual participant basis. The Sponsor is required by law to report to the IRS on Form 1099 MISC all
winnings that for the calendar year to date aggregate to more than $600. The Sponsor is required by
law to collect patron personal information including social security numbers, so that the Sponsor can
make the reports required by law. (The Sponsor’s privacy policy is set out below.) Except where
prohibited by law, all winners consent to the use of their names, home town, prizes won and likenesses
for promotional purposes on behalf of the Sponsor and the participating retailer. All disputes and claims
arising out of or relating to this promotional game shall be determined according to the laws of the
state in which the Sponsor’s store is located, without regard to such state’s conflict of law principles. All
participating entrants, by their participation, consent to the personal jurisdiction of the U.S. federal and
state courts located in that state and agree that such courts have exclusive jurisdiction over all such
disputes. All causes of action in any way arising out of or connected with this promotional game shall
be resolved individually without resort to any form of class action litigation; and any claims, judgments
and awards shall be limited to actual out of pocket expenses incurred.
9.PRIVACY POLICY. The Sponsor respects every patron’s right to privacy and the importance of
protecting information collected about them. The Sponsor have adopted an enterprise wide privacy
policy which guides how it will store and use the personal information which patrons provide in
connection with their participation in the promotional game and their use of the computer work station.
Any patron who has questions or comments about the Sponsor’s privacy policy may contact the Sponsor
for this propose by writing to: Privacy policy Administrator, 3506 N E Greenville Blvd, Greenville, NC,
27834. This policy applies only to information collected by the Sponsor through or derived from the
medium of its computer work station and in connection with participation in its promotional game.
Personal information is information which identifies the patron and may be used to contact the patron.
These terms and conditions provide that children (under eighteen years of age) are ineligible to
participate or to win prizes from their participation in the promotional game. CHILDREN MUST NEVER
GIVE OUT THEIR NAMES, ADDRESSES, EMAIL ADDRESSES OR TELEPHONE NUMBERS, IN THE ABSENCE OF
THEIR PARENTS’ WRITTEN PERMISSION. No information should be provided to the Sponsor by or
regarding children. If for any reason any person is concerned about a child’s personally identifying
information having been supplied, such person should notify the Sponsor at the privacy policy address
above. In response to the inquiry the Sponsor will review and remove the child’s information as
appropriate. In any event, the Sponsor does not knowingly disclose personal information about
children, under any circumstances. The personal information provided by patrons will allow the Sponsor
to make official reports required by law and to cooperate with government agencies, branches and
processes. The Sponsor will use the information for no other purpose.

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PROOF OF COURTESY SERVICE BY EMAIL
[Pursuant to Calif. Code of Civil Procedure § 1013a(3) and Fed.R.Civ.P. 5]

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I am a resident of and/or employed in the County of Los Angeles, State of California. I am
over the age of eighteen years and not a party to the within entitled action. I work at the law firm
4 of Weston, Garrou & Mooney located at 12121 Wilshire Blvd., Suite 525, Los Angeles, California
90025.
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On the date shown below, I served the following document:
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SUPPLEMENTAL DECLARATION OF MICHAEL DANIELS IN SUPPORT OF
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IBIZ’ MOTION FOR PRELIMINARY INJUNCTION
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9 By delivery as follows:
10 A courtesy copy was emailed on this date to the
following counsel for plaintiff in related case
11 No. 13-cv-1212 SC (Net Connections Hayward
v. City of Hayward):
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13 Stephen J. Meyer ([e-mail])
14 Tory E. Griffin ([e-mail])
15 Kelly L. Pope ([e-mail])
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I declare under penalty of perjury that the above is true and correct.

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Executed on May ____, 2013

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/s/ G. Randall Garrou
G. Randall Garrou

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SUPPLEMENTAL DECLARATION OF MICHAEL DANIELS
PRG7983.DOC

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EXHIBIT 2
Supplemental Declaration of Michael G. Vigilia in Support of Opposition
to Motion for Preliminary Injunction

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STIPULATION AND [PROPOSED] ORDER RE FILING OF SUPPLEMENTARY MATERIAL

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MICHAEL S. LAWSON (SBN 048172)
City Attorney
MICHAEL G. VIGILIA (SBN 228353)
Assistant City Attorney
CITY OF HAYWARD
777 B Street, 4th Floor
Hayward, CA 94541-5007
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant City of Hayward

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Case No. CV13 1537 SC

I BIZ, LLC, a California limited liability
company,

SUPPLEMENTAL DECLARATION OF
MICHAEL G. VIGILIA IN SUPPORT OF
OPPOSITION TO MOTION FOR
PRELIMINARY INJUNCTION

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Plaintiff,
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v.

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City of Hayward,

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Date:
June 21, 2013
Time:
10:00 a.m.
Courtroom: 1

Defendant

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I, MICHAEL G. VIGILIA, declare as follows:

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1.

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practice before the United States District Court, Northern District of California. I am the

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Assistant City Attorney assigned to this matter. All facts set forth below are personally known to

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me to be true except those which are set forth upon information and belief, and as to those facts I

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am informed and believe, and thereupon allege that they are true.

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2.

I am an attorney duly licensed to practice in the State of California and admitted to

On May 21, 2013 I filed, on behalf of the City of Hayward, a Request for Judicial Notice
City of Hayward Ordinance 13-03

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I BIZ, LLC v. City of Hayward
USDC Case No. CV 13-1537 SC

Declaration of Michael G. Vigilia
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3.

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Ordinance 13-03 dated February 19, 2013

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in support of Ordinance 13-

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Staff Report in support of
Staff Report

I declare under penalty of perjury under the laws of the State of California and the United
States that the foregoing is true and correct.
Executed this 28th day of May, 2013 in Hayward, California.

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/s/ Michael G. Vigilia
Michael G. Vigilia

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I BIZ, LLC v. City of Hayward
USDC Case No. CV 13-1537 SC

Declaration of Michael G. Vigilia
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PROOF OF COURTESY SERVICE BY EMAIL
[Pursuant to Calif. Code of Civil Procedure § 1013a(3) and Fed.R.Civ.P. 5]

I am a resident of and/or employed in the County of Los Angeles, State of California. I am
over the age of eighteen years and not a party to the within entitled action. I work at the law firm
4 of Weston, Garrou & Mooney located at 12121 Wilshire Blvd., Suite 525, Los Angeles, California
90025.
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On the date shown below, I served the following document:
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STIPULATION AND [PROPOSED] ORDER RE FILING
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OF SUPPLEMENTARY MATERIAL
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9 By delivery as follows:
10 A courtesy copy was emailed on this date to the
following counsel for plaintiff in related case
11 No. 13-cv-1212 SC (Net Connections Hayward
v. City of Hayward):
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13 Stephen J. Meyer ([e-mail])
14 Tory E. Griffin ([e-mail])
15 Kelly L. Pope ([e-mail])
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I declare under penalty of perjury that the above is true and correct.

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Executed on May 29, 2013

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/s/ G. Randall Garrou
G. Randall Garrou

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STIPULATION AND [PROPOSED] ORDER RE FILING OF SUPPLEMENTARY MATERIAL