McKinney v. Google, Inc. et al

Filing 118

RESPONSE to re 115 Request for Judicial Notice, by Mary McKinney, Nathan Nabors. (Attachments: # 1 Proposed Order Denying Defendants' Request for Judicial Notice)(Avila, Sara) (Filed on 11/7/2011)

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MILSTEIN | ADELMAN, LLP
SARA D. AVILA, State Bar No. 263213
[e-mail]
2800 Donald Douglas Loop North
Santa Monica, California 90405
Telephone [phone]
Facsimile [phone]
WHATLEY DRAKE & KALLAS, LLC
Joe R. Whatley, Jr. (pro hac vice pending, NY Bar No.4406088)
[e-mail]
Edith M. Kallas (pro hac vice pending, NY Bar No. 2200434)
[e-mail]
Patrick J. Sheehan (pro hac vice pending, NY Bar No. 3016060)
[e-mail]
1540 Broadway, 37th Floor
New York, New York 10036
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff
Additional Counsel Listed on Signature Page
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE DIVISION

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In re Google Phone Litigation
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I.

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Lead Case No. 5:10-CV-01177-EJD
(Consolidated with No. 5:10-CV-03897-EJD)
PLAINTIFFS’ OPPOSITION TO
REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF DEFENDANTS’
MOTION TO DISMISS SECOND
AMENDED COMPLAINT
Date:
Time:
Courtroom:
Judge:

February 3, 2012
9:00 A.M.
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Hon. Edward J. Davila

INTRODUCTION

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In connection with their Motion to Dismiss Plaintiffs’ Consolidated Amended Complaint,

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Defendants Google Inc. and HTC Corporation have asked the Court to take judicial notice of (1)

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Google’s Terms of Sale for the Nexus One and (2) HTC’s End User License Statement.

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Defendants incorrectly assert that, under Federal Rule of Evidence 201, the Court can take judicial
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PLAINTIFF’S MEMORANDUM IN OPPOSITION TO REQUEST FOR JUDICIAL NOTICE
5:10-CV-01177-JW

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notice of these documents. As explained below, the Court cannot take judicial notice of any of

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these documents for the truth of their content.

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II.

ARGUMENT

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A.

Legal Standard

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“Pursuant to Rule 201, a court may take judicial notice of adjudicative facts ‘not subject to

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reasonable dispute.’” See Jones v. Dovery, 2008 WL 733468, at *18 (S.D. Cal. Mar. 18, 2008)

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(quoting Fed. R. Evid. 201(b)). To satisfy the rule, facts must be either “generally known” or

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“capable of accurate and ready determination by resort to sources whose accuracy cannot

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reasonably be questioned.” See Fed. R. Evid. 201(b). “The party requesting judicial notice bears

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the burden of persuading the court that the particular fact is not reasonably subject to dispute and

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is capable of immediate and accurate determination by resort to a source ‘whose accuracy cannot

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reasonably be questioned.’” See Jasso v. Citizens Telecomms. Co. of Cal., Inc., 2007 WL 97036,

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at *2 (E.D. Cal. Jan. 9, 2007); In re Tyrone F. Conner Corp., 140 B.R. 771, 781 (Bankr. E.D. Cal.

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1992) (“[A] party requesting judicial notice bears the burden of persuading the trial judge that the

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fact is a proper matter for judicial notice.”).

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Because judicial notice is “an adjudicative device that substitutes the acceptance of a

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universal truth for the conventional method of introducing evidence,” the doctrine “merits the

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traditional caution it is given, and courts should strictly adhere to the criteria established by the

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Federal Rules of Evidence before taking judicial notice of pertinent facts.” See Gen. Elec. Capital

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Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir. 1997). Were it otherwise, “the

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fundamental concept of procedural due process” would be implicated, see In re Tyrone F. Conner

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Corp., 140 B.R. at 782, as “the effect of taking judicial notice under Rule 201 is to preclude a

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party from introducing contrary evidence and in effect, directing a verdict against him as to the

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fact noticed,” see United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994).

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B.

Defendants’ Request Must Be Denied Because Disputed Matters Are Not
Judicially Noticeable.

“If a court takes judicial notice of a fact in dispute, the court removes [the weapons of

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PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
5:10-CV-01177-EJD

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rebuttal evidence, cross-examination, and argument] from the parties and raises doubt as to

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whether the parties received a fair hearing.” See Gen. Elec. Capital, 128 F.3d at 1083. Thus,

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Federal Rule of Evidence 201 expressly provides that matters in dispute may not be judicially

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noticed. See Lee v. City of Los Angeles, 250 F. 3d 668, 689 (9th Cir. 2001) (“[A] court may not

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take judicial notice of a fact that is ‘subject to reasonable dispute.’ ”) (quoting Fed. R. Evid.

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201(b)).
1.

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Defendants Have Not Properly Authenticated Exhibits 1 And 2

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Plaintiff disputes the authenticity of the documents proffered and assertions made by

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Defendants’ attorneys and representatives. Defendants have failed to produce any undisputed

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matters of public record for which judicial notice may properly be taken, and, thus, their request

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must be denied.

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indisputable evidence that the Terms of Sale attached to Plaintiff McKinney’s original complaint

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is the Terms of Sale Google attaches to its Request for Judicial Notice. Second, Defendants

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provide no evidence that Plaintiffs actually received the Terms of Sale and/or the HTC End User

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License Agreement,1 nor that they read, understood or agreed to any term set forth therein. Third,

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with regard to the HTC End User License Agreement, Defendants provide absolutely no authority

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supporting the argument that it can bootstrap this document simply because it is referenced in

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another document. If that were the state of the law companies could reference a myriad of

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documents to protect themselves from future liability to consumers.
2.

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See Lee, 250 F. 3d at 689-90 (9th Cir. 2001). First, Defendants provide no

Exhibits 1 and 2 Are Hearsay And Thus Judicial Notice Should Not Be
Taken As To Their Facts And Contents

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To the extent the Court takes judicial notice as to the existence of Exhibits 1 and 2, it

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should reject Defendants’ request that the Court take judicial notice of the contents of those

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documents. Hearsay is an out of court statement offered for the truth of the matters asserted. Fed.

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R. Evid. 801(c). Here, the out of court statements contained in Exhibits 1 and 2 are being offered

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Plaintiffs have never attached the HTC End User License Agreement to any court filing.
Defendant HTC does not offer any evidence showing the HTC End User was given to Plaintiffs or
any member of the Class. Moreover, Plaintiffs’ allegations against HTC do not refer to any
agreement with HTC. Therefore, the Court should not take judicial notice of Exhibit 2.
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PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
5:10-CV-01177-EJD

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for the truth and contents of the matters asserted therein (i.e. to support Defendants’ assertion the

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exhibits disclaim warranties). In particular, Defendants ask the Court to interpret Exhibits 1 and 2

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in considering Defendants’ Motion to Dismiss. Moreover, Exhibit 2 amounts to “double hearsay”

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as it is merely a document that was vaguely referenced in Exhibit 1 (referred to as the “HTC

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Limited Warranty terms”). Accordingly, both documents must not be relied upon for their

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contents.

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III.

CONCLUSION

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For the reasons explained above, the Court should deny Defendants’ Request and refuse to

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take judicial notice of Google’s Terms of Sale for the Nexus One and HTC’s End User License

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Agreement.

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DATED: November 7, 2011
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Attorneys for Plaintiff Mary McKinney and the
Proposed Class

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By: /s/ Sara D. Avila
MILSTEIN ADELMAN, LLP
Gillian L. Wade
Sara D. Avila
WHATLEY DRAKE & KALLAS, LLC
Joe R. Whatley, Jr.
Edith M. Kallas
Patrick J. Sheehan
LAW OFFICE OF HOWARD
RUBINSTEIN
Howard Rubinstein
[e-mail]
914 Waters Avenue, Suite 20
Aspen, Colorado 81611
Tel: [phone]
SMITH & VANTURE, LLP
Brian W. Smith
[e-mail]
1615 Forum Place, Suite 4C
West Palm Beach, Florida 33401
Tel: [phone]
Fax: [phone]

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PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
5:10-CV-01177-EJD

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THE CONSUMER LAW GROUP
Alan M. Mansfield
[e-mail]
10200 Willow Creek Road, Suite 160
San Diego, CA 92131
Tel: [phone]
Fax: [phone]

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PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE
5:10-CV-01177-EJD