Video Software Dealers Association et al v. Schwarzenegger et al

Filing 19

Video Software Dealers Association et al v. Schwarzenegger et al

Doc. 19

Case 5:05-cv-04188-RMW

Document 19

Filed 11/07/2005

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ANN M ILLER RAVEL County Counsel County of Santa Clara S a n Jose , Califor n i a

ANN MILLER RAVEL, County Counsel (S.B. #62139) KATHRYN J. ZOGLIN, Deputy County Counsel (S.B. #121187) OFFICE OF THE COUNTY COUNSEL 70 West Hedding Street, East Wing, Ninth Floor San Jose, California 95110-1770 Telephone: [phone] Attorneys for Defendants SANTA CLARA COUNTY DISTRICT ATTORNEY GEORGE KENNEDY and ANN MILLER RAVEL, in their Official Capacities

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

VIDEO SOFTWARE DEALERS ) ASSOCIATION and ENTERTAINMENT ) SOFTWARE ASSOCIATION, ) ) Plaintiffs, ) ) v. ) ) ARNOLD SCHWARZENEGGER, in his ) official capacity as Governor of the State ) of California; BILL LOCKYER, in his ) official capacity as Attorney General of ) the State of California; GEORGE ) KENNEDY, in his official capacity as ) Santa Clara County District Attorney, ) RICHARD DOYLE, in his official ) capacity as City Attorney for the City of ) San Jose, and ANN MILLER RAVEL, in ) her official capacity as County Counsel ) for the County of Santa Clara, ) ) Defendants. ) )

No.

C05-4188 RMW (RS)

EX PARTE MOTION TO CONTINUE HEARING ON PRELIMINARY INJUNCTION; DECLARATION OF KATHRYN ZOGLIN; PROPOSED ORDER Crtrm.: Judge: 6 Honorable Ronald M. Whyte

I. INTRODUCTION The hearing for the preliminary injunction in this action has been set for December 2, 2005. Defendants Santa Clara County District Attorney George Kennedy and Santa Clara County Counsel Ann Ravel ("County defendants") have been sued in their official capacities.

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ANN M ILLER RAVEL County Counsel County of Santa Clara S a n Jose , Califor n i a

The County defendants request that the hearing date be continued one week to December 9, 2005, because their counsel is unavailable on December 2, 2005. Local Rule 7-10. II. DISCUSSION On October 7, 2005, Governor Schwarzenegger signed AB 1179 into law, which restricts the sale of a narrow set of violent videotapes to minors. The law will go into effect on January 1, 2006. On October 17, 2005, plaintiffs Video Software Dealers Association and Entertainment Software Association ("plaintiffs") filed a complaint for declaratory and injunctive relief. Plaintiffs named the following individuals, acting in their official capacity, as defendants: Governor Arnold Schwarzenegger, Attorney General Bill Lockyer, San Jose City Attorney Richard Doyle, Santa Clara County District Attorney George Kennedy, and Santa Clara County Counsel Ann Miller Ravel. The hearing date for plaintiffs' request for a preliminary injunction has been set for December 2, 2005. Deputy County Counsel Kathryn Zoglin has been assigned to write the brief opposing the preliminary injunction and to appear at the hearing on behalf of the County defendants. She is handling this matter because there is no one available on the Litigation Team to handle it. Ms. Zoglin is not available on December 2, 2005. She is handling a labor arbitration matter that was set in June 2005 and cannot be continued. The arbitration will likely last the entire day. She is available on December 9, 2005. Deputy Attorney General Zackery Morazzini, who represents Governor Schwarzenegger and Attorney General Lockyer; and Deputy City Attorney Fabela, who represents San Jose City Attorney Doyle, are available on December 9, 2005, for the hearing on the preliminary injunction. Plaintiffs state that they oppose a hearing on that date. They have not indicated they are not available that date. Rather, plaintiffs oppose a later hearing date because the law at issue will go into effect on January 1, 2006, if a preliminary injunction is not issued. The County defendants respectfully request that the hearing date for the preliminary injunction be continued one week, based on the unavailability of counsel. Local Rule 7-10. The County defendants request that the hearing on the preliminary injunction be continued to

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ANN M ILLER RAVEL County Counsel County of Santa Clara S a n Jose , Califor n i a

December 9, 2005. It appears that all counsel are available that day. The County defendants also request that opposition briefs be due on November 18, 2005. Currently, defendants' opposition briefs are due on Thursday, November 10, 2005, because Friday, November 11, 2005, is a holiday. Plaintiffs' motion for preliminary injunction presents complicated First Amendment issues. In addition to their pleadings, plaintiffs have submitted nine declarations as well as videos. III. CONCLUSION The County Defendants respectfully request that the hearing date be moved to December 9, 2005, based on the unavailability of their counsel. The County defendants also request that defendants' opposition papers be due on or before November 18, 2005. Dated: November 7, 2005 Respectfully submitted, ANN MILLER RAVEL County Counsel By: /S/ KATHRYN J. ZOGLIN Deputy County Counsel Attorneys for Defendants SANTA CLARA COUNTY DISTRICT ATTORNEY GEORGE KENNEDY AND SANTA CLARA COUNTY COUNSEL ANN MILLER RAVEL, in their Official Capacities DECLARATION OF KATHRYN ZOGLIN 1. I am a Deputy County Counsel assigned to handle the response to and hearing for the

preliminary injunction in the above-entitled matter. I am handling this matter at this stage of the case because the attorneys who normally handle litigation cases are not available. 2. I am not available on December 2, 2005. I am handling a labor arbitration matter

that was set in June 2005 and thus have been told that it cannot be changed. 3. I have spoken with Zack Morazzini, counsel for the Attorney General's Office;

Robert Fabela, counsel for the San Jose City Attorney's Office; and Ethan Dettmer, counsel for

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ANN M ILLER RAVEL County Counsel County of Santa Clara S a n Jose , Califor n i a

plaintiffs, to advise them that I am not available on December 2, 2005 for the hearing on the preliminary injunction. 4. Counsel for the defendants are available for hearing on the following Friday, on

December 9, 2005. They have no opposition to my request that the matter be continued one week. 5. Mr. Dettmer advised me that his clients oppose a hearing on December 9, 2005. Mr.

Dettmer did not indicate that plaintiffs' counsel are not available on December 9, 2005. Rather, he stated that his clients oppose that date because the law at issue will go into effect on January 1, 2006, if a preliminary injunction is not issued. 6. I request that defendants' opposition briefs be due on November 18, 2005.

Currently, defendants' opposition briefs are due on Thursday, November 10, 2005, because Friday, November 11, 2005, is a holiday. Plaintiffs' motion for preliminary injunction presents complicated First Amendment issues. In addition to their pleadings, plaintiffs have submitted nine declarations as well as videos. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed at San Jose, California, on November 7, 2005. /S/ KATHRYN J. ZOGLIN ORDER GOOD CAUSE APPEARING, IT IS HEREBY ORDERED: The hearing on the preliminary injunction is continued to December 9, 2005, at 9:00 a.m.; Defendants' opposition briefs are due on or before November 18, 2005; and Plaintiffs' reply brief, if any, is due on or before November 25, 2005. Dated:__________________ HONORABLE RONALD M. WHYTE United States District Court Judge

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