IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT

Transcription

1 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DAVID R. DAVIS, BRIAN GOLDSTEIN, JACOB DANIEL HILL, ERIC FEDER, PAUL COHEN, CHRIS BUTLER, SCOTT AUSTIN, JILL BROWN AND LISA SIEGEL, Case No. B v. Plaintiffs and Appellants, THE CITY OF LOS ANGELES, LOS ANGELES POLICE DEPARTMENT CHIEF OF POLICE CHARLIE BECK AND LOS ANGELES POLICE DEPARTMENT, Defendants and Res ondents. r k,~' 'f) ; T~! /;- j' I' L rtj " -n ~ ~ = '-'-' w -0 2 W U1 N Los Angeles County Superior Court, Case No. BS The Honorable James C. Chalfant APPELLANT'S SECOND MOTION FOR JUDICIAL NOTICE C. D. Michel- S.B.N Joshua R. Dale - S.B.N Tamara M. Rider - S.B.N Michel & Associates, P.C. 180 East Ocean Blvd., Suite 200 Long Beach, CA Telephone: Facsimile: CMichel@michellawyers.com Attorneys for Plaintiffs/Appellants

2 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DAVID R. DAVIS, BRIAN GOLDSTEIN, JACOB DANIEL HILL, ERIC FEDER, PAUL COHEN, CHRIS BUTLER, SCOTT AUSTIN, JILL BROWN AND LISA SIEGEL, Case No. B Plaintiffs and Appellants, v. THE CITY OF LOS ANGELES, LOS ANGELES POLICE DEPARTMENT CHIEF OF POLICE CHARLIE BECK AND LOS ANGELES POLICE DEPARTMENT, Defendants and Res ondents. Los Angeles County Superior Court, Case No. BS The Honorable James C. Chalfant APPELLANT'S SECOND MOTION FOR JUDICIAL NOTICE C. D. Michel- S.B.N Joshua R. Dale - S.B.N Tamara M. Rider - S.B.N Michel & Associates, P.c. 180 East Ocean Blvd., Suite 200 Long Beach, CA Telephone: Facsimile: CMichel@michellawyers.com Attorneys for Plaintiffs/Appellants

3 MOTION Appellants David R. Davis, Jacob Daniel Hill, Brian Goldstein, Paul Cohen, Scott Austin, and Eric Feder (collectively "Appellants") hereby move this Court to take judicial notice of the documents and information referred to below (collectively the "Transcripts"). This request is made pursuant to Evidence Code! sections 452(d), 452(h), 453, and 459, and California Rules of Court, rule 8.252(a). N one of the documents and information for which judicial notice is sought involve matters or events occurring after the entry ofthe judgment in this matter. Judicial notice for the material addressed herein was previously sought by the motion filed by Appellants on February 13,2013 (the "Motion"). The Court denied the Motion as to the material at issue on February 27,2013, one day after an Opposition to the Motion was filed. Appellants received the Opposition on February 28,2012, meaning they did not have an 0ppOliunity to request the ability to file a reply brief in support of the Motion. Matters for Which Judicial Notice Is Requested l. Portions of the court reporter's transcript from the July 24, 1998 hearing in Assenza v. City a/los Angeles, Case No. BCl15813, a true and accurate copy of which is attached to Appellant's Appendix at AA ; and 2. Portions of the court reporter's transcript from the June 26, 1998 hearing in Assenza v. City a/los Angeles, Case No. BCl15813, a true and correct copy of which! All references are to California's Evidence Code except as otherwise stated. 1

4 attached to Appellant's Appendix at AA As to the two items listed above, Appellants request this Court take notice of both the existence of such items and the truth of the content of those items as it relates to the City of Los Angeles', Los Angeles Police Department Chief of Police Charlie Beck's, and Los Angeles Police Department's expressed intent with regard to the Assenza Judgment. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND In the underlying action, Appellants moved the trial court to, take judicial notice, pursuant to Evidence Code sections , ofthe following documents in support of Petitioners' Reply Brief: 1. Portions of the court reporter's transcript from the July 24, 1998 hearing in Assenza v. City of Los Angeles, Case No. BCl15813, [and] 2. Portions of the court reporter's transcript from the June 26, 1998 hearing in Assenza v. City of Los Angeles, Case No. BC [.] (AA ) Copies of the relevant transcript excerpts were provided as exhibits to the relevant request (the "Supplemental Request"). (AA ) The Reply Brief and the related request for judicial notice (the "Supplemental Request") were filed and served on May 2,2012. (AA ) The trial court never issued an express ruling as to the requests quoted above, though it did rule on the underlying petition for writ of mandate on May 25,

5 (AA ; see also AA [tentative ruling denying writ of mandate].) Accordingly, the trial court did not deny the request, in that it never made a record of a denial pursuant to Section Oral arguments on the underlying motion occurred on May 9, 2012, at least one week after Appellants filed their supplemental request for judicial notice with the trial court. (Reporter's Transcript ("RT") at 25:1-54:28.) No oral or written objections were made to the relevant requests when they were pending before the trial court. (See RT 25:1-54:28 [trial court proceedings].) n. RELEVANT LAW Pursuant to California Evidence Code section 459(a), "[t]he reviewing court shall take judicial notice of (1) each matter properly noticed by the trial court and (2) each l?'latter that the trial court was required to notice under Section 451 or 453." (Emphasis added.) Section 453 states that The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter. Finally, Section 452 provides judicial notice may be taken as to "[r]ecords of... 2 "If the trial court denies a request to take judicial notice of any matter, the court shall at the earliest practicable time so advise the parties and indicate for the record that it has denied the request." (Evid. Code, 456). 3

6 any court ofthis state" and "[fjacts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resoli to sources of reasonably indisputable accuracy." III. ARGUMENT A. All of the Elements for Mandatory Judicial Notice Are Met Here Appellants have a right to have the Transcripts judicially noticed by the Court, as is explained by the three-step analysis put forth below. First, the documents at issue are part of the trial court record-not to mention the record in Assenza-meaning they may be judicially noticed pursuant to Section 452( d). Furthermore, that the documents are true and correct copies of what they purport to be cannot reasonably be challenged, thus they may be judicially noticed pursuant to Section 452(h). In addition, because Respondents have no good reason to dispute the truth of the position stated by Respondents' counsel in the Assenza transcript,3 that factual matter can be judicially noticed pursuant to Section 452(h). (See Evid. Code, 452, subd. (h); see also Pang v. Beverly Hasp., Inc. (2000) Cal.AppAth 986, ("we may consider 3 I.e., that the Assenza Judgment created an enforceable right, via writ, for members of the public who were not plaintiffs in the original Assenza matter. (AA [at 49:22-50: 12], AA [at 59:22-60:9], and AA [at 29:8-10].) Indeed, it would be unreasonable for Respondents to attempt to challenge the truth of this factual matter, as doing so would seem to require them to adopt the position that Respondents' own counsel misrepresented his client's position during the Assenza litigation. 4

7 matters that may be judicially noticed, including a party's admissions or concessions which can not reasonably be controverted").) In sum, the Transcripts are proper subjects of judicial notice under multiple sections of the Evidence Code. Second, by filing and serving their Supplemental Request at least one week before the trial date, Appellants met both requirements for mandatory judicial notice pursuant to Section 453. Specifically, by filing and serving the Supplemental Request at least one week before the hearing, Appellants: "(a)... gave sufficient notice of the request... to enable [the] adverse party to prepare to meet the request" and "(b) [fjurnishe[ d] the court with sufficient information to enable it to take judicial notice of the matter." Thus, because judicial notice was available pursuant to Section 452, and because Appellants provided sufficient notice to the Respondents and the trial court, the trial court was required to take notice of the Transcripts, under the unambiguous terms of Section 453. In fact, this Court should assume that by the trial court's "silence," i.e., its failure to issue an the required order under Section 456 denying judicial notice, that the trial court did, in fact, take judicial notice ofthe materials identified in Appellants' Supplemental Request. (See Aaronoffv. Martinez-SenJtner (2006) 136 Cal.App.4th 910, [where party made request for judicial notice, no obj ection was made to the request, and the trial court did not issue an order denying the request, the appellate court determined that the trial court had taken judicial notice of the requested documents].) 5

8 Given that the trial court was obligated to take judicial notice of the Transcripts, and it did not issue an order denying the request for such notice, an assumption that judicial notice was taken by the trial court is the legally appropriate conclusion. (See id.) Third, because the trial court was required to notice the Transcripts under Section 453, this Court has a similar mandatory duty as stated in Section 459. Therefore, because Respondents never met the request,4 and because Appellants met the requirements of mandatory notice found in Section 453, Appellants are now justified in seeking mandatory judicial notice from this Court pursuant to Section 459(a). B. The Material to Be Judicially Noticed Is Plainly Relevant 1. Evidence tending to prove intent as to the Assenza Judgment is relevant. The material sought to be noticed is plainly relevant, as is required for all judicially noticed material. (See Evid. Code, 210 ["'Relevant evidence' means evidence... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."], and 350 ["No evidence is admissible except relevant evidence."]') In the trial court, Appellants, who were not parties to Assenza, argued that the Respondents "fail[ ed] to provide them with the benefit of the bargained-for Assenza Judgment[.]" (AA ) The trial court ruled the parties to Assenza, 4 Failure to object to a request for judicial notice at the trial court stage operates as waiver. (el Plumley v. Mockett (2d Dist. 2008) 164 Cal. App. 4th 1031, 1051.) 6

9 bargained for the terms of the Assenza Judgment. That bargaining included the mechanism of enforcement for any failure by the Chief of Police to adhere to the Judgment's terms -- a motion to enforce or contempt in the Assenza case. Neither the City nor the plaintiffs in Assenza bargained for enforcement of its terms outside of the Assenza case. (AA ) The trial court further stated that, Petitioners filed this action because they were not plaintiffs in the Assenza case. But they argue that the Assenza Judgment applies to benefit all members of the public, and that they are third-party beneficiaries who have standing to enforce the consent decree. [Citation] Whether they are depends in the first instance on an interpretation of the Judgment by the Assenza court. (AA ) Appellants sought relief in this Court regarding several aspects of the trial court's ruling, including Appellants' beliefthe Respondents and the Assenza plaintiffs did "bargain[jfor enforcement of [Assenza's] terms outside of the Assenza case." (AAOO 159l.) That is, the Appellants disagree with the trial comi's "interpretation of the Judgment by the Assenza court[,]" which is a key predicate for the instant appeal. (AA ) Clearly, the transcript excerpts sought to be noticed are relevant to what the Assenza parties bargained for. Indeed, the Transcripts represent the Respondents' predisputes interpretation of the intent behind and applicability of the Assenza consent decree S To be clear, there was an ongoing dispute in Assenza at the time the transcripts were created in It concerned whether contempt relief was available within the 7

10 to non-parties, which means the transcript admissions fall within a classic form of evidence used to establish intent. (See 1 Witkin, Summary of Cal. Law (10th ed.), Contracts 749. ["Acts of the parties, subsequent to the execution of the contract and before any controversy has arisen as to its effect, may be looked to in determining the meaning... 'This rule of practical construction is predicated on the common sense concept that' actions speak louder than words. "']. ) Review of the Transcripts show they have a "tendency in reason to prove" Respondents' intent regarding the Assenza Judgment. Therefore, because the determination of that intent "is of consequence to the determination of the action[,]" the material sought to be noticed is undeniably relevant. 2. Respondents' inapt characterization of the Transcripts is an insufficient basis upon which to argue the Transcripts are irrelevant. Respondents' Opposition to the First Motion for Judicial misstates that the "Appellants offer these transcripts... to establish various representations of the parties boundaries of the Assenza matter as to individuals who were not original parties to that action. (AA [at 48:18-50:12].) Respondents argued that it was not, claiming that the Assenza parties intended that a writ of mandate be the sole enforcement mechanism for non-parties to the Judgment. (AAOO [at 59:22-60:9]; AA [at 29:8-10].) The dispute at issue in the instant action (Davis) is different, however, as it concerns whether writ relief is available outside the boundaries of the Assenza matter as to individuals who were not original parties to that action - the position argued by Respondents in the Transcripts. 8

11 including the City as to the meaning of the judgment." (Resp. Non-Opp. and Opp. to Req. for Jud. Ntc., at 5.) Based on that skewed supposition, Respondents contend that such "representations" or "opinions" are irrelevant, and therefor they cannot be judicially noticed. Respondents' supposition is wrong, and appears to be raised to distract focus away from the plain relevance of the Transcripts. Appellants offer the Transcripts, and the contents thereof, as evidence regarding the actual and expressed intent of the parties, and not "as to the meaning of the judgment[.]" (Jd.). The inapplicability of Respondents' construct becomes clear when applied in the context of this action. Appellants have raised an argument herein that the doctrine of equitable judicial estoppel should be applied regarding the past conduct, including statements, of Respondents. (Opening Br., at ) Application of that doctrine in this matter would turn on Respondents' statement and conduct, and not a "representation" as to the "meaning of the judgment." (Resp. Non-Opp. and Opp. to Req. for Jud. Ntc., at 5; and see Evid. Code, 623.) "Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it." (Jd., 623 [emphasis added].) Clearly, Appellants' estoppel argument does not turn on a "representation" "as to the meaning of the judgment." Respondents' attempt to reclassify evidence of intent as 9

12 evidence of legal opinion is unavailing, as it side-steps the fact that the content of the Transcripts is obviously relevant to, at the least, the issue of estoppel. Based on the foregoing, the Court should disregard Respondents' unfounded relevancy argument and judicially notice the Transcripts. IV. CONCLUSION Transcripts. F or the foregoing reasons, Appellants request that judicial notice be taken of the Dated: March 13,2013 MICHEL & ASSOCIATES, P.C. AttorntY for A ellants David R. Davis, Jacob Daniel Rill, rian Goldstein, Paul Cohen, Scott Austin, and Eric Feder 10

13 PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF LOS ANGELES I, Christina Sanchez, am employed in the City of Long Beach, Los Angeles County, California. I am over the age eighteen (18) years and am not a party to the within action. My business address is 180 East Ocean Blvd., Suite 200 Long Beach, CA On March 13,2013, I served the foregoing document(s) described as APPELLANT'S SECOND MOTION FOR JUDICIAL NOTICE on the interested parties in this action by placing [ ] the original [X] a true and correct copy thereof enclosed in sealed envelope(s) addressed as follows: SEE ATTACHED "SERVICE LIST" ll (BY MAIL) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Long Beach, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date is more than one day after date of deposit for mailing an affidavit. Executed on March 13,2013, at Long Beach, California. ll (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 13,2013, at Long Beach, California. &~~cto 11

14 SERVICE LIST DA VID R. DA VIS ET AL. v. CITY OF LOS ANGELES ET AL. CASE NO. B Gregory P. Orland Office of the City Attorney 200 North Main Street 900 City Hall East Los Angeles, CA Burton C. Jacobson ATTORNEYS AT LAW Beverly Hills Law Building 424 South Beverly Drive Beverly Hills, CA Attorney for Defendants/Respondents City of Los Angeles, Los Angeles Police Department and Los Angeles Police Department Police Chief Charlie Beck Co-Counsel 12

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