Case 9:11-ap DS Doc 288 Filed 06/14/18 Entered 06/14/18 16:44:20 Desc Main Document Page 1 of 8

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1 Main Document Page of KEVIN S. ROSEN (SBN 0) BRADLEY J. HAMBURGER (SBN ) BHamburger@gibsondunn.com MICHAEL H. DORE (SBN ) MDore@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP South Grand Avenue Los Angeles, CA 00- Telephone: () -000 Facsimile: () - Attorneys for Defendant Bryan Cave LLP JAMES L. SANDERS (SBN ) JSanders@reedsmith.com FRANCISCA M. MOK (SBN 00) FMok@reedsmith.com CHRISTOPHER O. RIVAS (SBN ) CRivas@reedsmith.com REED SMITH LLP 0 Avenue of the Stars, Suite 00 Los Angeles, CA 00-0 Telephone: (0) -00 Facsimile: (0) - Attorneys for Defendant Katherine M. Windler 0 UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA NORTHERN DIVISION 0 In re: ESTATE FINANCIAL, INC., Debtor. THOMAS P. JEREMIASSEN, Chapter Trustee, v. Plaintiff, BRYAN CAVE LLP, a professional limited liability partnership, and KATHERINE M. WINDLER, an individual, In re Defendants. Chapter Case Nos. :0-bk--DS, :0-bk--DS Adv. Nos. :-ap-0-ds, :-ap-0-ds Assigned to The Hon. Deborah J. Saltzman BRYAN CAVE LLP AND KATHERINE WINDLER S JOINT OPPOSITION TO TRUSTEES REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITIONS TO (I) MOTION FOR PARTIAL SUMMARY JUDGMENT BY DEFENDANT BRYAN CAVE LLP ON GROUNDS OF UNCLEAN HANDS AND/OR IN PARI DELICTO AND (II) MOTION FOR PARTIAL SUMMARY JUDGMENT BY DEFENDANT KATHERINE WINDLER FOR LACK OF DAMAGES Hearing: Date: July, 0 Time: :00 p.m. Place: Courtroom 0 State Street Santa Barbara, CA 0

2 Main Document Page of 0 ESTATE FINANCIAL MORTGAGE FUND, LLC, Debtor. BRADLEY D. SHARP, CHAPTER TRUSTEE, vs. Plaintiff, BRYAN CAVE LLP, a professional limited liability partnership, and KATHERINE M. WINDLER, an individual, Defendants. 0

3 Main Document Page of I. INTRODUCTION Defendants Bryan Cave LLP and Katherine Windler hereby opposes Plaintiff Trustees (the Trustees ) Request for Judicial Notice in Support of Oppositions to (I) Motion for Partial Summary Judgment By Defendant Bryan Cave LLP on Grounds of Unclean Hands and/or In Parti Delicto and (II) Motion for Partial Summary Judgment by Defendant Katherine Windler for Lack of Damages ( RJN ). The Trustees RJN should be denied because the Trustees do not even attempt to explain why judicial notice is appropriate or how the documents are relevant to their case and improperly seek judicial notice of documents for the truth of their contents. II. ARGUMENT 0 0 A. The Trustees Do Not Explain Why the Exhibits Are Subject to Judicial Notice. A fact is subject to judicial notice only if it is generally known within the trial court s territorial jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed. R. Civ. P. 0; Reed v. Ohio Sav. Bank, F. App x, 0 (th Cir. 0). When a party requests judicial notice, the court may decline to grant it if the court is [not] supplied with the necessary information. Fed. R. Evid. 0(c)(); In re Icenhower, F.d 0, (th Cir. 0). Merely citing Rule 0 is not sufficient; a party who fails to explain why its documents are properly subject to judicial notice or how they are relevant to the case, fails to comply with the requirements of Rule 0. See Lopez v. JPMorgan Chase Bank, N.A., 0 WL 00, at * (C.D. Cal. Jan., 0) (denying request for judicial notice where defendant d[id] not explain why documents ()-() [were] appropriate for judicial notice under Federal Rule of Evidence 0(b) ); Rios v. Friendly Hills Bank, 0 WL 0, at * (C.D. Cal. Aug., 0) (denying request for judicial notice where Plaintiff failed to explain how, if it all, documents filed in other suits were relevant to the matters at issue ). The Trustees simply cite Rule 0 and provide a list of documents for which they seek judicial notice but do not explain why these documents are judicially noticeable. For many of the documents, the Trustees fail to explain how they came to possess them and how the facts contained can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. See Fed. R. Civ. P. 0. For example, Exhibits 0 and purport to be two sets of an

4 Main Document Page of 0 0 [a]pplication, Proposed Offering Circular, and [April, 00 and October, 00] letter from Katherine Windler to the State of California Department of Corporations. RJN, 0. It is not clear on what grounds these types of documents would be subject to judicial notice. See In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litig., 0 WL, at * (C.D. Cal. Oct. 0, 0) (denying request for judicial notice of letters between FDA and private entity). Moreover, Exhibit on its face appears to omit the EFI Proposed Offering Circular that Trustees seek to have judicially noticed. Because the Trustees provide no explanation for the grounds of their request, the Court should decline to take judicial notice. B. The Trustees Have Failed To Establish Why The Materials Are Relevant Relevance is a threshold consideration in a court's determination of whether to take judicial notice under Federal Rule of Evidence 0. Johnson v. Nyaco, LLC, No. :-CV-00-KJM, 0 WL 0, at * (E.D. Cal. Apr., 0); see also Silvester v. Harris, F. Supp. d, (E.D. Cal. 0), rev d on other grounds, F.d (th Cir. 0) (declining to take judicial notice of certain legislative facts in action challenging constitutionality of various firearms related statutes where there was an inadequate demonstration of how such evidence was intended to be used and/or how the evidence is relevant ); Cybersitter, LLC v. People s Republic of China, 0 F. Supp. d, (C.D. Cal. 0) (declining to take judicial notice of the fact that Defendants counsel appeared in the AmLaw list of the highest grossing revenue law firms because said fact was irrelevant to the instant motion to dismiss for lack of jurisdiction). In addition to failing to explain why the materials are the proper subject of judicial notice, the Trustees have failed to explain how the materials at issue are relevant to this dispute. This is particularly significant because the Trustees appear to be asking the Court to take judicial notice of Exhibits, and merely for the purpose of attempting to portray Bryan Cave and Windler in a negative light. Such use of character evidence is clearly inappropriate and would render such material irrelevant. See Fed. R. Evid. 0(a)() ( Evidence of a person s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. ).

5 Main Document Page of 0 0 C. The Trustees May Not Seek Judicial Notice of the Truth of the Contents of Their Exhibits. Even if the Trustees exhibits are subject to judicial notice, the Court may only take judicial notice of the existence of the requested documents... but not of the facts asserted therein. Elec. Waveform Lab, Inc. v. EK Health Servs., 0 WL 0, at * (C.D. Cal. Mar., 0). The truth of the content, and the inferences properly drawn from them is not a proper subject of judicial notice under Rule 0. Gerritsen v. Warner Bros. Entm t Inc., F. Supp. d 0, 0 (C.D. Cal. 0) (citation omitted). Because the Trustees fail to provide any explanation of why the Court should take judicial notice of the documents, the purpose for which the Trustees are using the documents is not clear. It is, however, apparent that that the Trustees could not be attempting to use some of these materials for any other purpose than veracity of statements made therein. By way of example, the Trustee have asked the Court to judicially notice a declaration from March 00 (Exhibit ) about events that purportedly occurred fifteen years ago involving Windler. Clearly, the existence of a declaration filed fifteen years ago is itself meaningless. What the Trustees improperly want the Court to do is judicially notice the veracity of the factual statements contained within that declaration. That is clearly improper. See Nitao v. Pac. Gas & Elec. Co., 0 WL, at * (C.D. Cal. Aug., 0) (denying request for judicial notice of documents filed in other courts where Plaintiff [sought] to prove the facts asserted in the documents [but] such facts were subject to reasonable dispute ); Maiman v. Talbott, 00 WL 0, at * (C.D. Cal. Aug., 00) ( [W]hile it may be appropriate to judicially notice the existence of SEC filings and their contents, judicial notice should not be taken of the truth of their contents. ). The same would be true of any similar attempt to take judicial notice of the truth of facts asserted within the other exhibits. III. CONCLUSION Because the Trustees RJN is wholly unsupported by citations to case law or any explanation as to why judicial notice is appropriate, Bryan Cave respectfully requests that the Court deny the RJN or limit judicial notice to the fact of the documents existence or filing (except for Exhibits,,

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