COURT OF APPEAL STATE OF CALIFORNIA

Transcription

1 B IN THE COURT OF APPEAL STATE OF CALIFORNIA SECOND APPELLATE DISTRICT Division 8 SEDA GALSTIAN AGHAIAN, et al., Plaintiffs & Appellants, vs. SHAHEN MINASSIAN, Defendant & Respondent. Appeal from the Superior Court of California, County of Los Angeles The Hon. Kevin Brazile (case no. BC498691) OPPOSITION TO APPELLANTS MOTION FOR JUDICIAL NOTICE John Derrick, SBN THE LAW OFFICE OF JOHN DERRICK, a professional corporation 21 E. Pedregosa Street Santa Barbara, CA jd@californiaappeals.com Attorney for Respondent SHAHEN MINASSIAN

2 TABLE OF CONTENTS INTRODUCTION 1 ARGUMENT 2 1. Review of a trial court s decision is based on the evidence before it at the time it rendered its decision 2 2. There are no exceptional circumstances to justify deviating from the standard rule 3 3. The motion is procedurally defective 3 4. There is no attempt at showing why this document, if significant, was not placed before the trial court 4 5. Appellants offer no authority that supports their request 5 6. The motion leaves the reader to try to figure out what appellants contend should be judicially noticed 6 7. The motion is not timely 6 8. The material of which judicial notice is sought contains numerous instances of hearsay 7 9. Having first offered expert evidence, appellants cannot now claim that their propositions are not reasonably subject to dispute A decision on appellants motion should be made now, as opposed to being deferred 9 CONCLUSION 10 i

3 CASES Bank Melli Iran v. Pahlavi TABLE OF AUTHORITIES (9th Cir. 1995) 58 F.3d California School Boards Assn. v. State (2011) 192 Cal.App.4th DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d Leet v. Union Pac. R. Co. (1944) 25 Cal.2d MBI Group, Inc. v. Credit Fancier Du Cameroun (D.C. Cir. 2010) 616 F.3d People v. Preslie (1977) 70 Cal.App.3d Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d United States v. Bay (9th Cir. 1984) 762 F.2d Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th RULES OF COURT Rule STATUTES Evidence Code section 452 8, 9 Evidence Code section Evidence Code section ii

4 INTRODUCTION This is a business dispute involving properties that are located in Iran. All the parties are Iranian citizens. There is ongoing litigation in Iran dealing with the very same issues. Appellants thought they might get a better outcome with parallel litigation in California. However, the trial court granted a defense motion to stay the action under the doctrine of forum non conveniens. (2 App. 285.) That doctrine is an equitable one embracing the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action before it may be more appropriately and justly tried elsewhere. (Leet v. Union Pac. R. Co. (1944) 25 Cal.2d 605, 609.) This appeal is of that order. Together with their opening brief, appellants have filed a motion asking this Court to take judicial notice of a 2012 State Department report. The purpose was to try to place new evidence before this Court as to why in appellants opinion Iran is not a suitable venue. This document downloaded from the Internet was never placed before the trial court, even though the date of its issuance appears to predate the trial court proceedings. Appellants request runs squarely against the rule that absent exceptional circumstances this Court considers a trial court s ruling based on what was before it when the decision was rendered. 1

5 ARGUMENT 1. Review of a trial court s decision is based on the evidence before it at the time it rendered its decision All of the argument in appellants motion concerns whether or not, in the abstract, a U.S. State Department Country Report is judicially noticeable. But that is not the primary question. The proper question is whether, even if such a document could be judicially noticed in the abstract (which would depend on the purpose), appellants can ask this Court to take judicial notice for the first time on appeal, when no attempt was made to put it in front of the trial court. Thus, the issue has to do not with the boundaries of judicial notice, but with the scope and limits of appellate review. Appellants motion should be denied because [i]t is a fundamental principle of appellate law that our review of the trial court s decision must be based on the evidence before the court at the time it rendered its decision. (California School Boards Assn. v. State (2011) 192 Cal.App.4th 770, 803.) Not only did the parties have their opportunity to put their evidence about the Iranian judicial system and the adequacy of the remedies available to plaintiffs in that country in front of the trial court, but they took advantage of it with competing expert evidence. (2 App. 291.) The court s order granting the forum non conveniens 2

6 motion made clear that it had carefully weighed both sides expert evidence. (2 App. 291.) Appellants motion seeks to have this Court reach its own decision with a different pool of evidence. That is not what appeals are about. 2. There are no exceptional circumstances to justify deviating from the standard rule Only exceptional circumstances can justify deviating from that rule through the mechanism of judicial notice. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444.) Examples are when legislative changes have occurred subsequent to a judgment or when subsequent events have caused issues to become moot. (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) Here, no exceptional circumstances exist. Indeed, appellants don t even try to suggest otherwise. 3. The motion is procedurally defective Moreover, appellants do not even acknowledge the fact that they are asking for judicial notice to be taken of something that was not before the trial court. That means they are in violation of Rule 8.252, subdivision (2), which provides that a motion seeking judicial notice on appeal must state: (B) Whether the matter to be noticed was presented to the trial court and, if so, whether judicial notice was taken by that court. (Emphasis added.) Since there is no statement to that effect, the motion can be denied as procedurally defective for that reason alone. 3

7 4. There is no attempt at showing why this document, if significant, was not placed before the trial court Since the motion does not even acknowledge that the material was not put before the trial court, it is no surprise that it also fails in another regard it doesn t offer any attempt at a showing that the report was unavailable. Presumably, a 2012 government report would have been available in August 2013, when appellants filed their opposition in the trial court. Even if that were not so, there is no showing how the 2012 report differed from any previous one. If a party wants to be allowed the very rare privilege of placing additional evidence before the Court of Appeal, it must at least make a showing of good cause as to why this couldn t have been put before the trial court in the first place. (DeYoung v. Del Mar Thoroughbred Club (1984) 159 Cal.App.3d 858, 863, fn. 3 [rules authorizing taking of judicial notice and additional evidence on appeal do not contemplate the reviewing court should take original evidence to reverse a judgment [citation], and [are] not available where there is no good cause shown for the unavailability of the evidence below. [Appellant] gives no explanation for the failure to offer the lease on which the agency argument was based at the [trial court] hearing. We therefore decline to exercise our power to take additional evidence on this matter. ].) 4

8 A showing of nonavailability would not, in itself, suffice for the motion to be granted. But it is surely a prerequisite for any theoretical possibility of granting it. 5. Appellants offer no authority that supports their request Appellants cite to cases in which State Department Country Reports were considered. But these are ones where this occurred in the trial court in the first instance. For example, in Bank Melli Iran v. Pahlavi (9th Cir. 1995) 58 F.3d 1406 cited by appellants on page 3 of their motion it was the district court that first, on its own volition, obtained a human rights report concerning Iran. (Id. at p ) The Ninth Circuit noted that appellants did not object to that at the time and that any objection to the consideration of those materials on appeal had, therefore, been waived. (Id. at p. 1411, fn. 5.) To put that forward as authority for what appellants are requesting here is absurd. All that the case says is that the failure to object to such material in the trial court waives the right to do so on appeal. It is hardly authority for the proposition that a party can seek judicial notice for the first time on appeal. None of appellants other authority is any better. For example, MBI Group, Inc. v. Credit Fancier Du Cameroun (D.C. Cir. 2010) 616 F.3d 568, 575 dealt with a situation where judicial notice of a report on Cameroon was first taken in the district court. 5

9 6. The motion leaves the reader to try to figure out what appellants contend should be judicially noticed Another basic defect with the motion is that it doesn t actually state what things in the 55-page State Department report appellants want this Court to judicially notice. The report covers all sorts of things, most of which could not be of any conceivable relevance (wages paid to migrant Afghan workers, discrimination against Kurds, and the legality of movies promoting drug abuse, among many other examples). A clue can be found by poring through appellants opening brief in search of citations to the document. But a motion of this sort should surely be self-contained. Or, at a minimum, it should point the reader to the relevant references in an accompanying brief. As it is, however, appellants have effectively told both respondent and this Court: Here s the 55-page report. Now go figure what parts we want to use. That, surely, is not good practice. 7. The motion is not timely The timing of the motion is also problematic it was filed at the same time as appellants opening brief. That is permissible under the Rules of Court, but it is certainly not best practice. (See People v. Preslie (1977) 70 Cal.App.3d 486, 494 [although judicial notice may be requested at the time of briefing, it is desirable in the interest of orderly judicial procedure to make the request well before the 6

10 brief-filing stage, emphasis added].) Appellants offer no explanation for their timing. The practice of filing a simultaneous request of this nature with a brief that already cites to the material for which judicial notice is sought prevents a respondent from opposing it before the brief is filed. There may sometimes be good cause why this is unavoidable. But a moving party should surely at least address the need to have cited outside the record without having already received permission to do so rather than simply presume to file a brief citing to material outside the record, in the hope that a request will eventually be granted. 8. The material of which judicial notice is sought contains numerous instances of hearsay Appellants motion is troublesome for reasons other than that it plays fast and loose with basic principles of appellate law and procedure. Even if one were to consider the State Department document as potential new evidence on appeal, it contains numerous instances of hearsay. Take, for example, the following on page 14: International observers, including the UNHRC, independent legal experts, and human rights NGOs, including AI, HRW, and Reporters without Borders (RSF), continued to criticize the lack of independence of the country s judicial system and judges and maintained that trials disregarded international standards of fairness. Appellants are plainly trying to offer such statements 7

11 for their truth. Therefore, such material is inadmissible as a matter of law. (Evid. Code, 1200.) 9. Having first offered expert evidence, appellants cannot now claim that their propositions are not reasonably subject to dispute Appellants contend that the State Department report is judicially noticeable as it contains [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Motion at p. 1, citing to Evid. Code, 452, subd. (h).) Clearly, the issues relating to whether the parties could fairly litigate their grievances in Iran are subject to dispute. The very fact that the issue was litigated in the Superior Court, with competing sets of expert evidence, demonstrates that there is a dispute about all of this. As a matter of law, appellants expert testimony if properly admitted spoke to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code, 801.) Appellants cannot have it both ways: They cannot first offer expert evidence on this issue, which by definition deals with matters outside of common lay knowledge, and then, after losing in the trial court, come to this Court claiming that the propositions they advance are not reasonably subject to dispute. (Motion at p. 1.) 8

12 10. A decision on appellants motion should be made now, as opposed to being deferred Sometimes, decisions on requests for judicial notice are deferred, so that they are decided at the same time as the appeal to which they relate. In this case, however, respondents ask that the motion be decided at the front end. A consequence of deferring a decision is that respondent would then likely feel compelled to make his own request for judicial notice of additional materials helpful to his side of the case. Counsel for appellants states in his supporting declaration that he pulled the report his clients want to use from the Internet. (Motion at p. 5.) But there is much out there on the Internet. Sauce for the goose is sauce for the gander. (United States v. Bay (9th Cir. 1984) 762 F.2d 1314, 1315.) A search on Google reveals some more recent relevant documents from the State Department, such as ones welcoming positive developments in Iran since the election of President Rouhani in Likewise, Evidence Code section 452, subdivision (f), allows a court to take judicial notice of the laws of foreign nations. If the doors are opened to new evidence in this appeal through the mechanism of judicial notice, then all sorts of documents stating or summarizing Iranian civil procedure could be placed before this Court. No doubt there would as in most judicial systems be conflicting 9

13 interpretations of some of those rules and laws. So those, too, could then come to the fore. That is quite apart from potential arguments about translation. To be clear, respondent believes that no such requests for judicial notice should be granted to place additional evidence before this Court. Respondent s view is that this appeal like virtually every other one should be decided solely on the record before the trial court. But if appellants motion is granted, then it would only be fair to open the door to respondent as well. And if a decision on appellants motion is deferred, then respondent would feel obliged out of caution to make his requests with his brief. The consequence would be further extraneous materials placed before this Court. Appellants are treating this appeal as though it were some sort of a free for all. Any notion that it is should be corrected sooner rather than later. CONCLUSION For the reasons stated above, respondent asks that appellants motion for judicial notice be denied. April 16, 2014 Respectfully submitted, THE LAW OFFICE OF JOHN DERRICK, apc by John Derrick Attorney for Respondent Shahen Minassian 10

14 PROOF OF SERVICE I am over 18 years of age and not a party to this action. I am a resident of the county where the mailing described herein took place. My business address is 21 E. Pedregosa Street, Santa Barbara, CA On April 16, 2014, I sent from Santa Barbara, California, the following document: OPPOSITION TO APPELLANTS MOTION FOR JUDICIAL NOTICE I served the document by enclosing it in envelopes and depositing the sealed envelopes with the United States Postal Service, postage fully prepaid. The envelopes were addressed and mailed as follows: Allan B. Cooper Ervin, Cohen & Jessup 9401 Wilshire Blvd. 9th Floor Beverly Hills, CA Steven S. Fleischman Horvitz & Levy Ventura Blvd 18th Floor Encino, CA I declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct. April 16, 2014 John Derrick