MOTION TO STRIKE OPENING BRIEF; PROPOSED ORDER

Transcription

1 2d Civil No. B L.A. S.C. Case No. BS In The Court of Appeal State of California SECOND APPELLATE DISTRICT DIVISION SEVEN DAVID R. DAVIS, BRIAN GOLDSTEIN, JACOB DANIEL HILLM,ERIC FEDER, PAUL COHEN, CHRIS BUTLER, JILL BROWN, AND LISA SIEGEL, v. Appellants, PETITIONERS, CITY OF LOS ANGELES, et ai., Respondents, RESPONDENTS. APPEAL FROM SUPERIOR COURT OF LOS ANGELES COUNTY HONORABLE JAMES C. CHALFANT, JUDGE PRESIDING MOTION TO STRIKE OPENING BRIEF; PROPOSED ORDER CARMEN A. TRUTANICH City Attorney, SBN GREGORY P. ORLAND Deputy City Attorney, SBN City Hall East 200 North Main Street Los Angeles, California Voice: ; Fax: Attorneys for Respondents CITY OF LOS ANGELES and CHARLES BECK

2 2d Civil No. B L.A.S.c. Case No. BS In The Court of Appeal State of California SECOND APPELLATE DISTRICT DIVISION SEVEN DA VID R. DAVIS, BRIAN GOLDSTEIN, JACOB DANIEL HILLM,ERIC FEDER, PAUL COHEN, CHRIS BUTLER, JILL BROWN, AND LISA SIEGEL, v. Appellants, PETITIONERS, CITY OF LOS ANGELES, et at, Respondents, RESPONDENTS. APPEAL FROM SUPERIOR COURT OF LOS ANGELES COUNTY HONORABLE JAMES C. CHALFANT, JUDGE PRESIDING MOTION TO STRIKE OPENING BRIEF; PROPOSED ORDER CARMEN A. TRUTANICH City Attorney, SBN GREGORY P. ORLAND Deputy City Attorney, SBN City Hall East 200 North Main Street Los Angeles, California Voice: ; Fax: Attorneys for Respondents CITY OF LOS ANGELES and CHARLES BECK

3 MOTION TO STRIKE OPENING BRIEF A. Introduction On Febmary 27, 2013, this division denied in part appellants' request for judicial notice. The items which this court refused to judicially notice are: 1) The Lake Judgment; 2) The Kihm Judgment; 3) Reporter's transcript from June 26, 1998; 4) Reporter's transcript from July 24, 1998; 5) 1993 LAPD CCW Application Form. For the reasons stated below, appellants' opening briefing brief should be stricken and re-filed without reference to the barred materials. B. Analysis California Rules of Court, mle 8.204(e)(2)(B) authorizes the court to strike a non-conforming brief with instmctions that it be re-filed within a specified time. (See South Sutter LLC v. LJ Sutter Partners L.P. (2011) 193 Cal.AppAth 634, 647 [court stmck opening brief which contained references to "irrelevant" documents which were not judicially noticed by the appellate court]; People v. Barry (1957) 149 Cal.App.2d 646,647 [brief stricken for containing irrelevant materials].) The entirety of appellants' opening brief is infected with references to all five barred and irrelevant documents. The brief is 57 pages long, but on 13 pages or 23% of the brief appellants refer to the barred and irrelevant documents. Appellants in their request for judicial notice conceded both the Lake and Kihm judgments are not part of the record on appeal, yet the opening brief collectively makes 20 independent references to both of these barred and irrelevant documents. Page 23 of the brief is largely devoted to a discussion of the barred and irrelevant Lake and Kihm judgments. At page 6 of the opening brief most of that page 2

4 discusses the barred and irrelevant July 24, 1998 transcript. At page 28, almost half that page too is devoted to discussing the barred and irrelevant June 26, 1998 and July 24, 1998 reporter's transcripts. More examples can be cited to this court of appellants' improper use of barred and irrelevant documents, two of which are not part of the record on appeal, but these illustrations suffice. The record in this case is fact dense; the issues are deadly serious, i. e., the carrying of concealed firearms by members of the public; this court should not be distracted by substantial references and reliance by appellants on barred and irrelevant documents, some of which are not part of the record on appeal. CONCLUSION Predicated upon the foregoing, the City of Los Angeles and Charles Beck request their motion to strike appellants' opening brief be granted. Dated: March 4, 2013 CARMEN A. TRUTANICH City Attorney GREGORYP.ORLAND Deputy City Attorney ()~ /l--. G A rorneys for Respondents City of Los Angeles and Charles Beck 3

5 2d Civil No. B L.A.S.C. Case No. BS In The Court of Appeal State of California SECOND ~PPELLATE DISTRICT DIVISION SEVEN DAVID R. DAVIS, BRIAN GOLDSTEIN, JACOB DANIEL HILLM,ERIC FEDER, PAUL COHEN, CHRIS BUTLER, JILL BROWN, AND LISA SIEGEL, v. Appellants, PETITIONERS, CITY OF LOS ANGELES, et ai., Respondents, RESPONDENTS. ORDER The City of Los Angeles and Charles Beck's motion to strike appellants' opening brief is granted. The opening brief is to be returned to appellants. Appellants are ordered to refile their opening brief within 30 days from the date of this order without any reference whatsoever, whether direct or indirect, to the following items: 1) The Lake Judgment (request for judicial notice item No.3); 2) The Kihm Judgment (request for judicial notice item No.4); 3) Reporter's transcript from July 24, 1998 (request for judicial notice item No. 11); 4) Reporter's transcript from June 26, 1998 (request for judicial notice item No. 12); 4

6 5) 1993 LAPD CCW Application Form (request for judicial notice item No. 14). Dated: March, 2013 Presiding Justice California Court of Appeal Second Appellate District Division Seven 5

7 PROOF OF SERVICE (Via Various Methods) I, the undersigned, say: I am over the age of 18 years and not a party to the within action or proceeding. My business address is 900 City Hall East, 200 North Main Street, Los Angeles, California On March 4, 2013, I served the foregoing document(s) described as MOTION TO STRIKE OPENING BRIEF; PROPOSED ORDER on all interested parties in this action by placing copies thereof enclosed in a sealed envelope addressed as follows: C.D. Michel Michel & Associates, P.C. 180 E. Ocean Blvd., Suite 200 Long Beach, CA Burton C. Jacobson Beverly Hills Law Bldg. 424 South Beverly Drive Beverly Hills, CA [X] BY MAIL - I deposited such envelope in the mail at Los Angeles, California, with first class postage thereon fully prepaid. I am readily familiar with the business practice for collection and processing of correspondence for mailing. Under that practice, it is deposited with the United States Postal Service on that same day, at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than (1) day after the date of deposit for mailing in affidavit; and or I declare under penalty of perjury that the foregoing is true and correct. Executed on March 4,2013, at Los Angeles, California 6