Case 2:10-cv JAK -JEM Document 40 Filed 03/01/11 Page 1 of NO 9 Page FEE ID DUE #: JENNFER A.D. LEHMN, Principal Deputy County Counsel

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1 Case 2:10-cv JAK -JEM Document 40 Filed 03/01/11 Page 1 of NO 9 Page FEE ID DUE #:255 GOV'T CODE ANDREA SHERIDAN ORDIN, County Counsel ROGER H. GRANBO, Assistant County Counsel 2 JENNFER A.D. LEHMN, Principal Deputy County Counsel (SBN 1977) jlehman(àcounsel.lacounty.gov 3 10NA THAN MCCA VERTY, Deputr. County Counsel (SBN 09) jmccavertyræco.uylse.lqcounty.gov Kenneth Rahn Hall of A:aministratlOn 500 West Temple Street 5 Los Angeles, California Telephone (2) Fax: (2) Attorneys for Defendants 7 LOS ANGELES COUNTY SHERIFF'S DEPARTMENT & LEE BACA UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 12 JONATHAN BIRDT, Plaintiff, v. CHAIE BECK, LEE BACA, THE 16 LOS ANGELES POLICE DEPARTMENT and THE LOS 17 ANGELES COUNTY SHERIFF'S DEPARTMENT, and DOES 1 through 18 50, 19 Defendants. 24 CASE NO. CV RGK (JEMx) DEFENDANTS LOS ANGELES COUNTY SHERIFF'S DEPARTMENT & LEE BACA'S REQUEST FOR ADDITIONAL TIME TO OPPOSE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO FRCP 56(F); DECLARATION OF JENNIFER A.D. LEHMAN Current MSJ Date; Action Filed: MSJ Filing Cutoff: Trial Date: April 4, 11 November 4,10 July 19,11 October 4, 11 Pursuant to Federal Rule of Civil Procedure 56(f), Defendants Los Angeles County Sheriff's Department and Sheriff Lee Baca ("the LASD Defendants ") HOA

2 Case 2:10-cv JAK -JEM Document 40 Filed 03/01/11 Page 2 of 9 Page ID #:256 1 request a six-week continuance of the hearing on Plaintiff Jonathan Birdt's motion 2 for summary judgment. As set forth below, additional time is necessary for 3 Defendants to obtain the deposition transcript of Plaintiff's deposition, and because 4 Defendants' expert witness has been out of the country, and requires extensive 5 research by the Defendants that wil take several weeks to complete. All of this 6 information is vital to Defendants' opposition to Plaintiff's summary judgment 7 motion regarding the constitutionality of Defendants' good cause definition under 8 Penal Code 150, and as set forth below. Trial in this matter is not set until 9 October 11, and the motion filng cut-off is not until July On March 1, 11, Plaintiff informed Defendants that he would not stipulate 11 to a continuance of his motion. 12 BACKGROUND On December 1,10, Plaintiff Jonathan Birdt served his lawsuit on Defendants County of Los Angeles and Sheriff Lee Baca ("the LASD Defendants"). Mr. Birdt claims that he was improperly denied a concealed weapons (CCW) permit 16 by the City of Los Angeles and the County of Los Angeles. Plaintiff alleges that 17 Defendants definition of "good cause" as used in Penal Code section 150 "beyond 18 the interests of self-defense violates the Second and Fourteenth Amendments to the 19 United States Constitution. On December 17,10, the LASD Defendants filed an answer to Plaintiffs Complaint. Less than two weeks later, on December 30,11, Plaintiff filed a motion for summary judgment and calendared the motion for January 31, 11. Both the LASD Defendants and co-defendants City of Los Angeles and Charlie 24 Beck ("the LAPD Defendants") informed Plaintiff that they believed the motion was 25 premature since there had been NO discovery conducted, and the court had not even 26 set a Scheduling Conference. Plaintiff agreed to move the hearing on his summary judgment motion to April 4, 11 without prejudice to any part seeking further continuance of the hearing. On February,11, the court held the Scheduling HOA

3 Case 2:10-cv JAK -JEM Document 40 Filed 03/01/11 Page 3 of 9 Page ID #:257 1 Conference in this matter, and set the trial date for October 4, On that same day, the LAPD Defendants filed a motion to stay the case 3 pending Ninth Circuit review of a San Diego case, Peruta v. County of San Diego, 4 CV leg. Like Plaintiff in this case, the plaintiffs in Peruta contend that 5 they are constitutionally entitled to carr a loaded handgun in public for the purpose 6 of self-defense. In Peruta, the district court judge granted San Diego County's 7 motion for summary judgment, which is now on appeal to the Ninth Circuit Court of 8 Appeals. The hearing on Defendants' motion to stay is calendared for March, On February, 11, the deposition of Plaintiff was taken. The transcript of 11 the deposition will be unavailable until March 10,11 at the very earliest. 12 Defendants' opposition to Plaintiffs motion for summary judgment is due on March, 11. The hearing on Defendants' motion to stay wil not be heard until March,11. To properly oppose Plaintiffs motion and to also prepare Defendants' own cross-motions for summary judgment, Defendants require Plaintiffs deposition. 16 Even assuming that the court reporter wil be able to prepare the deposition 17 transcript by March 10,11 at the very earliest, four days (two of which are 18 Saturday and Sunday) is not a sufficient time to be able to adequately prepare 19 Defendants' opposition. Further, Defendants require the declaration of their expert, Franklin Zimring, to oppose Plaintiffs motion, as well as to file their own as he wil testify regarding the justification for Defendants' good cause requirement. Mr. Zimring has been out of the country on vacation and has not been available. His first day back in the 24 office was February, 11. In order to render his opinions, he wil need the 25 opportity to look at Plaintiffs deposition. Mr. Zimring has also asked for various 26 statistics from all of the Defendants regarding the number and types of gun-related arrests made in the last few years. Given the LASD's very limited resources, that research and the compilation of those statistics wil take several weeks to complete, HOA

4 Case 2:10-cv JAK -JEM Document 40 Filed 03/01/11 Page 4 of 9 Page ID #:258 1 and Mr. Zimring will need time to conduct his analysis. 2 Finally, Defendants contend that this matter should be stayed pending 3 resolution of the Peruta appeal, as discussed further in the LAPD Defendants' 4 motion. 5 Accordingly, the LASD Defendants ask for a six-week continuance of the 6 hearing, to May 16, 11 to afford Defendants the time to gather the information 7 they need and obtain the court's ruling on the motion to stay. This is well in 8 advance of the July 19,11 summary judgment filing deadline the Court set at the 9 Scheduling Conference, and the October 4,11 trial date. The six-week 10 continuance wil not unduly prejudice Plaintiff I continuance of ARGUMENT THERE is GOOD CAUSE FOR A SIX-WEEK CONTINUANCE OF PLAINTIFF'S SUMMARY JUGMENT MOTION. Under Federal Rule of Civil Procedure 56(f), a party may request a 1 the proceedings to permit further discovery. FRCP 56(f); Crawford- El v. Britton, 5 U.S. 574, 599 n. (1998), quoting Fed. R. Civ. Pro 56(f). A lesser showing of specificity for a continuance is required where a summary judgment is made early in a case because a party cannot be expected to have fully explored a case. See Burlington Northern Santa Fe R.R. Co. v. Assinniboine & Sioux Tribes of Fort Peck Reservation, 3 F.3d 767, 774 (9th Cir. 03). Where, however, a summary judgment motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any Rule 56(f) motion fairly freely. See Metabolife Intl, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 01) ("Although Rule 56(f) facially gives judges the discretion to disallow discovery IPlaintiffwould not agree to a continuance of the April 4, 11 hearing. HOA

5 Case 2:10-cv JAK -JEM Document 40 Filed 03/01/11 Page 5 of 9 Page ID #:259 1 when the non-moving party cannot yet submit evidence supporting its opposition, 2 the Supreme Court has restated the rule as requiring, rather than merely permitting, 3 discovery 'where the non-moving part has not had the opportunity to discover 4 information that is essential to its opposition.' ") (citing Anderson v. Liberty Lobby, 5 Inc., 477 U.S. 242, 250 n.5, 91 L. Ed. 2d 2, 106 S. Ct (1986)); see also 6 Berkeley v. Home Ins. Co., 3 U.S. App. D.C. 358, 68 F.3d 09, (D.C. Cir ) (describing "the usual generous approach toward granting Rule 56(f) 8 motions"); Wichita Falls Offce Assoc. v. Bane One Corp., 978 F.2d 9,919 na 9 (5th Cir. 1992) (Rule 56(f)-based "continuance of a motion for summary 10 judgment (*774) for purposes of discovery should be granted almost as a matter of 11 course in such situations). 12 Here, the Scheduling Conference took place approximately two weeks ago and Plaintiffs deposition took place approximately one week ago. The LASD Defendants acknowledge the Plaintiff has been extremely prompt in his discovery responses; however, Defendants should have the opportnity to digest these 16 responses and develop their defense. Trial in this matter is not set until October and the motion filing cut-off in this case is July 19, 11. It is stil very early 18 in the litigation process and Defendants should have the right to fully develop their 19 defense in a reasonable fashion. A six-week continuance of the summary judgment hearing would not prejudice Plaintiff, but forcing Defendants to oppose a motion without the opportunity to fully prepare their defense is highly prejudicial. As such, in the event the Court does not stay the action pending Ninth Circuit review of Peruta, the LASD Defendants ask for a six-week continuance of the summary 24 judgment hearing HOA

6 Case 2:10-cv JAK -JEM Document 40 Filed 03/01/11 Page 6 of 9 Page ID #:260 1 DATED: March 1,11 Respectfully submitted, 2 ANDREA SHERIDAN ORDIN 3 County Counsel At eys for Defendants 8 LOS ANGELES COUNTY SHERIFF'S 9 DEPARTMENT & LEE BACA HOA

7 Case 2:10-cv JAK -JEM Document 40 Filed 03/01/11 Page 7 of 9 Page ID #:261 1 DECLARATION OF JENNIFER A.D. LEHMAN IN SUPPORT OF MOTION.FOR CONTIN UANCE UNDER.FRCP 56(.F) I, JENNIFER A.D. LEHMN, declare as follows: Defendants County of Los Angeles and Sheriff Lee Baca ("the LASD Defendants"). 4. On December 17, 10, the LASD Defendants filed an answer to Plaintiffs Complaint. 5. Less than two weeks later, on December 30,11, Plaintiff filed a 16 motion for summary judgment and calendared the motion for January 31, Both the LASD Defendants and co-defendants City of Los Angeles 18 and Charlie Beck ("the LAPD Defendants) informed Plaintiff that they believed the 19 motion was premature since there had been NO discovery conducted, and the court had not even set a Scheduling Conference. Plaintiff agreed to move the hearing on his summary judgment motion to April 4, 11 without prejudice to any party seeking further continuance of the hearing. Plaintiff would not agree to a HOA

8 Case 2:10-cv JAK -JEM Document 40 Filed 03/01/11 Page 8 of 9 Page ID #:262 1 Defendants' motion to stay is calendared for March, On February,11, the deposition of Plaintiff was taken. I am 3 informed and believe that the transcript of the deposition will be unavailable until 4 March 10, 11 at the very earliest. Defendants' opposition to Plaintiffs motion for 5 summary judgment is due on March, 11. The hearing on Defendants' motion 6 to stay will not be heard until March,11. Four days (two of which are 7 Saturday and Sunday) is not a sufficient time to be able to adequately prepare 8 Defendants' opposition Defendants require the declaration of their expert, Franklin Zimring, to 10 oppose Plaintiffs motion, as well as to file their own. Mr. Zimring has been out of 11 the country on vacation and has not been available. His first day back in the office 12 was February,11. In order to render his opinions, he wil need the opportunity to look at Plaintiffs deposition. 10. Mr. Zimring has also asked for various statistics from all of the Defendants regarding the number and types of gun-related arrests made in the last 16 few years. Given the LASD's very limited resources, that research and the 17 compilation of those statistics will take several weeks to complete, and Mr. Zimring 18 wil need time to conduct his analysis Accordingly, the LASD Defendants ask for a six-week continuance of the hearing, to May 16, 11 to afford Defendants the time to gather the information they need and obtain the court's ruling on the motion to stay. This is well in advance of the July 19,11 summary judgment filing deadline the Court set at the Scheduling Conference, and the October 4,11 trial date. The six-week 24 continuance wil not unduly prejudice Plaintiff 25 I declare under penalty of perjury that the foregoing is true and correct under 26 the laws of the State of California. HOA

9 Case 2:10-cv JAK -JEM Document 40 Filed 03/01/11 Page 9 of 9 Page ID #:263 1 Executed this 1 st day of March, 11 in Los Angeles, California HOA