1 KAMALA D. HARRIS Attorney General of California 2 STEPAN A. HAYTAYAN Supervising Deputy Attorney General 3 JEFFREY A. RICH Deputy Attorney General 4 State Bar No. 59 00 I Street, Suite 125 5 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (91) 324-5154 Fax: (91) 324-35. 7 E-mail: Jeffrey.Rich@doj.ca.gov Attorneys for Kamala D. Harris, in her official capacity as Attorney General for the State of California; Stephen Lindley, in his official capacity 9 as Chief of the California Department of Jllstice Bureau of Firearms; California Department of Justice 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO 14 15 1 KIM BELEMJIAN; JONATHAN Case No. 15 CECG 00029 FAIRFIELD; T.J. JOHNSTON; 17 MATTHEW PIMENTEL; STANLEY ROY; FFLGUARD, INC.; CALIFORNIA RIFLE 1 AND PISTOL ASSOCIATION, VIA FAX FILE 19 Plaintiffs, 20 VS. KAMALA D. HARRIS, IN HER OFFICIAL 22 CAPACITY AS ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA; STEPHEN 23 LINDLEY, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE CALIFORNIA 24 DEPARTMENT OF JUSTICE BUREAU OF FIREARMS; CALIFORNIA 25 DEPARTMENT OF JUSTICE; AND DOES 1-, 2 Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND REQUEST FOR ORAL TESTIMONY Date: December 1, 2015 Time: 3:30 p.m. Dept: 503 Judge: Hon. Alan Simpson Trial Date: None Action Filed: January, 2015 Memo. of Points and Authorities in Opposition to Motion for Attorneys' Fees (15 CECG 00029)
1 2 3 4 5 7 9 12 TABLE OF CONTENTS Page Introduction... 1 Procedural Background... 1 Plaintiffs' Stated Reasons for Bringing Their Action... 2 Argument... :... 1. Plaintiffs Are Not Entitled to Recover Attorney's Fees Under the Private Attorney General Doctrine Because Their Own Personal Interests Motivated Bringing Their Action... II. III. Plaintiffs Have Not Cited Any Authority That Stands for the Proposition That They Are Entitled to Section.5 Attorneys' Fees if Their Primary Motivation for Bringing Their Action is Personal but Non-Pecuniary... If the Court Awards Plaintiffs Attorneys' Fees it Should Restrict the Award to Fees Incurred That Furthered the Litigation ofissues of Public Importance... 9 IV. Plaintiffs Are Not Entitled to Oral Testimony at the Motion Hearing... 9 14 15 1 17 1 19 20 22 23 24 25 2 Memo. of Points and Authorities in Opposition to Motion for Attorneys' Fees (15 CECG 00029)
1 TABLE OF AUTHORITIES 2 3 4 5 7 9 12 14 15 1 17 1 19 20 22 23 24 25 2 CASES Beach Colony II v. California Coastal Com. (195) 1 Cal.App.3d... 7 Brown v. Aguilar (19) 202 Cal. 143... 7 California Licensed Foresters Assn. v. California St. Bd. of Forestry (1994) 30 Cal.App.4th 52... 7,9 City of Maywood v. Los Angeles Unified School Dist. (2012) 20 Cal.App.4th 32... 9 Conservatorship of Whitley (20) 50 Cal.4th 120,122... 9 Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (20) 17 Cal.App.4th 37... 7 Flannery v. California Highway Patrol (199) 1 Cal.App.4th 29... 7, 9 Satrap v. Pacific Gas & Electric Co. (199) 42 Cal.App.4th 72... 7 Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917... STATUTES Code of Civil Procedure 19.5, subd. (a)... 2.5...,... passim 197, subd. (b)... 9 2025.230... 9 Penal Code 20... 2 20, subd. (a)... 1 20, subd. (c)... 1 20, subd. (d)... 1 35... 2 ii Memo. of Points and Authorities in Opposition to Motion for Attorneys' Fees (15 CECG 00029)
1 Defendants and respondents Kamala D. Harris, in her official capacity as Attorney General 2 of the State of California, Stephen Lindley, in his official capacity as Chief of the California 3 Department of Justice Bureau of Firearms, and the California Department of Justice 4 ("defendants") submit the following memorandum of points and authorities in support of their 5 opposition to the motion for attorneys' fees and request for oral testimony filed by plaintiffs and petitioners Kim Belemjian, Jonathan Fairfield, T.J. Johnston, Matthew Pimentel, Stanley Roy, 7 FFLGuard, Inc., and the California Rifle and Pistol Association ("plaintiffs"). INTRODUCTION 9 Plaintiffs have conclusively admitted-by their verified complaint allegations-that their action was brought to advance their personal interests. When the record indicates, as in this case, that the primary effect of a lawsuit was to advance or vindicate a plaintiff's personal economic 12 interests, an award of attorneys' fees under section.5 is improper. This Court should deny plaintiffs motion for attorneys' fees. 14 For each of two reasons, this Court should also deny plaintiffs' request for oral testimony to 15 prove their catalyst theory. First, it does not matter what else this lawsuit may have been a. 1 catalyst for where, as here, personal interests motivated plaintiffs' action. Second, plaintiffs' 17 request for oral testimony is an improper attempt to conduct post judgment discovery during the 1 hearing on their motion. In fact, one of the witnesses plaintiffs seek to "depose" on the witness 19 stand is "Defendants' Person Most Knowledgeable about Defendants' initiation offorrnulating 20 regulations for the FSC Program and safe-handling demonstrations." Unlike for a deposition, plaintiffs cannot compel "a person most knowledgeable" to attend the hearing. This Court has 22 previously rejected plaintiffs' request to conduct discovery for their catalyst theory. The Court 23 should deny discovery again. 24 PROCEDURAL BACKGROUND 25 Plaintiffs filed their original complaint/petition on January, 2015, and one day later, 2 applied ex parte for a temporary restraining order and an order to show cause seeking to enjoin defendants from enforcing, among other things, Penal Code section 20, subdivisions (a), (c) and (d). The Court denied plaintiffs' ex parte application in its entirety. 1
1 2.3 4 5 7 9 12 14 15 1 17 1 19 20 22 23 24 25 2 About a month later, plaintiffs filed a verified First Amended Complaint alleging six causes of action seeking declaratory and injunctive relief and a seventh cause of action seeking a writ of mandate. In response, defendants filed a demurrer to the entire First Amended Complaint. The demurrer contended that plaintiffs' entire action was mooted by the Department of Justice's promulgation of emergency regulations implementing the Firearm Safety Certificate Program and long gun safe-handling demonstrations. Plaintiffs filed a statement of non-opposition to the demurrer agreeing that their action was moot. In their statement of non-opposition, plaintiffs asked this Court to delay entry of judgment of dismissal so that plaintiffs may conduct discovery to support their catalyst theory for their Code of Civil Procedure section.5 attorney's fees claim. On April 14, 2015, the Court issued its tentative ruling sustaining defendants' demurrer without leave to amend. Further, the Court's tentative ruling rejected plaintiffs' request for delay of entry of judgment to conduct discovery. Plaintiffs did not request oral argument. The Court issued a minute order, adopting its tentative ruling and serving as the order required under Code of Civil Procedure section 19.5, subdivision (a). On April 24, 2015, the Clerk served the parties with the minute order, which included a copy of the tentative ruling, by mail. The Court's order directed defendants to submit a proposed judgment of dismissal to the Court within seven days of service of the minute order. Defendants timely provided the Court with the proposed judgment of dismissal on May, 2015. Judgment against plaintiffs was entered on June 3, 2015, less than five months after the actioll' was filed. PLAINTIFFS' STATED REASONS FOR BRINGING THEIR ACTION Plaintiffs' original verified complaint alleges facts explaining each plaintiffs personal stake in the successful outcome of the action in paragraphs 12 through 1: 12. Kim Belemjian is a resident of Fresno County, California. She intends to purchase a firearm in California this year. Plaintiff Belemjian does not currently possess a Handgun Safety Certificate or a Firearm Safety Certificate, and is not exempt from the Firearm Safety Certificate and long-gun safe-handling demonstration requirements of Penal Code sections 35 and 20. In order to purchase afirearm in California, Plaintiff Belemjian will be subject to the 2
1 2 changes made by SB 3 and the subsequent regulations imposed by Defendants.. Plaintiff Jonathan Fairfield has been certified by the Department to issue 3 Handgun Safety Certificates since December, 200. He is also an NRA Certified Pistol Instructor and NRA Certified Rifle and Shotgun instructor. Plaintiff 4 Fairfield issues Handgun Safety Certificates (now referred to as Firearm Safety Certificates) as part of his business as a firearm instructor at various gun shows, 5 at other firearm-related events, and in his role as a Firearm Safety Certificate instructor at the Apple Valley Gun Club located in Victorville, California. In order to continue to issue Firearm Safety Certificates, which are required to. transfer or purchase any firearm in California as of January 1,2015, Plaintiff 7 Fairfield will be subject to the changes made by SB 3 and the subsequent regulations imposed by Defendants. 14. PlaintiffT.J. Johnston is the owner and proprietor of AllSafe Defense 9 Systems ("AllSafe"), located in Orange, California, which offers both armed and unarmed self-defense classes and specializes in providing safe, fun, and effective training in the use of firearms to members of the public... In November 2000, the Department issued Certificate #222, approving the AllSafe Basic Handgun class as satisfying the training requirements for individuals to be issued a Handgun Safety Certificate. Plaintiff Johnston was then approved as a certified instructor, 12 authorized to issue Handgun Safety Certificates, in 2003. He has since issued over 1,700 certificates. In order to continue to issue Firearm Safety Certificates, which are required to purchase any firearm in California as of January 1,2015, Plaintiff Johnston will be subject to the changes made by SB 3 and the 14 subsequent regulations imposed by Defendants. 15 15. Plaintiff Matthew Pimentel is a Fresno, California, based Pea[c]e. Officer Standards and Training ("POST") Instructor, a California Department of 1 Justice Firearms Instructor, and a National Rifle Association ("NRA") Certified Instructor who has provided firearm-related instruction throughout California since 17 early 2000... Since 2007, Mr. Pimentel has certified approximately 300 individuals to administer the Handgun Safety Certificate test, and has himself 1 issued approximately 400 Handgun Safety Certificates to individuals seeking to purchase a handgun. In order to continue to issue Firearm Safety Certificates, 19 which are required to transfer or purchase any firearm in California as of January 1,2015, Plaintiff Pimentel will be subject to the changes made by SB 20 3 andthe subsequent regulations imposed by Defendants. 1. Plaintiff Stanley Roy has been certified by the NRA as a Pistol Instructor since December 20 and as a Rifle Instructor since July 2014. He is 22 also the Education Committee Chairman of the Antelope Valley NRA Member's Council, which provides classes to the local community on firearm safety and 23 education. Plaintiff Roy wishes to provide Firearm Safety Certificates to his group as well as other individuals as a Department certified instructor. Plaintiff Roy has 24 yet to apply to become a certified instructor, but intends to apply this year. In order to become certified by the Department, Mr. Roy will be subject to the 25 changes made by SB 3 and the subsequent regulations imposed by Defendants. Plaintiff Roy also intends to purchase long guns in California over 2 the next few years. 17. PlaintiffFFLGuard LLC, is a Delaware corporation located at 244 Fifth Ave., Suite 190, New York, New York 001. FFLGuard offers a cooperative compliance and legal defense program for Federal Firearms Licensees ("FFLs") by 3
1 providing clients with lawyers, subject-matter experts, professionals, and paraprofessionals who are specialists in the area of firearms law and compliance.... 2 FFLGuard represents countless California Firearm Dealers and their employees, including certified Handgun Safety Certificate Instructors and soon-to-be certified 3 Firearm Safety Certificate Instructors throughout California. This case falls squarely within the interests of FFLGuard and its clients who are licensed 4 dealers, the latter being subject to criminal penalties for unintentional violation of the law and who cannot comply with the long-gun safe-handling 5 demonstration requirements placed on FFLs unless and until Defendants adopt regulations pursuant to Penal Code section 20, subdivision (b). 1. Plaintiff California Rifle and Pistol Association ("CRP A") is a nonprofit 7 organization that seeks to defend the Second Amendment and advance laws that protect the rights of individual California residents.... CRP A represents the interests of the tens of thousands of its members who reside in the State of California, including those in Fresno County, who are too numerous to 9 conveniently bring this action individually and whose interests include their desire to transact in or acquire firearms and otherwise engage in conduct protected by the Second Amendment. CRP A also represents a number of California Firearm Dealers and their employees, certified Handgun Safety Certificate Instructors and soon-to-be certified Firearm Safety Certificate Instructors throughout California who are subject to the changes made by SB 3 and the subsequent 12 regulations imposed by Defendants. l3 (Original Complaint ~~ 12-1, emphasis added.) 14 Plaintiffs' declarations filed in support oftheir January 7,2015 ex parte application i are 15 consistent with their complaint allegations concerning their personal stake in the outcome of the 1 action. 17 Kim Belemjian Declaration 1 4. I do not currently possess a Handgun Safety Certificate or a Firearm Safety Certificate. 19 5. I am not exempt from the Firearm Safety Certificate and long-gun safehandling demonstration requirements of California Penal Code sections 35 and 20 20.. I intend to purchase a firearm in California this year. 22 Jonathan Fairfield Declaration 23 7. I issue Handgun Safety Certificates as part of my business as a firearms 24 instructor at various gun shows, at other firearm-related events, and in my role as a Firearm Safety Certificate instructor at the Appl[ e] Valley Gun Club located in 25 Victorville, California. 2. In order for me to continue to issue Handgun Safety Certificates which are now referred to as Firearm Safety Certificates, I will be subject to the changes i Plaintiff California Rifle and Pistol Association did not provide a supporting declaration. 4
1 2 3 4 5 7 9 12 14 15 1 17 1 19 20 22 23 24. 25 2 made by Senate Bill 3 and the subsequent regulations imposed by the California Department of Justice on the Firearm Safety Certificate program. year. 9. I intend to purchase a firearm that is not a handgun in California this T.J. Johnson Declaration. In my career as a firearm instructor, I have issued over 1,700 Handgun Safety Certificates to individuals as required for purchasing a handgun in the state of California.. In order for me to continue to issue Handgun Safety Certificates which are now referred to as Firearm Safety Certificates, I will be subject to the changes made by Senate Bill 3 and the subsequent regulations imposed by the California Department of Justice on the Firearm Safety Certificate program. [12]. I intend to purchase a firearm that is not a handgun in California this year. Matthew Pimentel Declaration 5. I currently possess a valid Handgun Safety Certificate.. I have been certified by the California Department of Justice to issue Handgun Safety Certificates since 2007. 7. In my career as a firearm instructor, I have issued over 400 Handgun Safety Certificates to individuals, which is required for purchasing a handgun in the state of California.. I am certified by the California Department of Justice under Penal Code section 3135, subdivision (b) to train individuals to become certified Handgun Safety Certificate instructors. 9. I have certified approximately 300 individuals to administer the Handgun Safety Certificate test.. In order for me to continue to issue Handgun Safety Certificates which are now referred to as Firearm Safety Certificates, I will be subject to the changes made by Senate Bill 3 and the subsequent regulations imposed by the California Department of Justice on the Firearm Safety Certificate program. year.. I intend to purchase a firearm that is not a handgun in California this Stanley Roy Declaration 5. I currently possess a valid Handgun Safety Certificate.. I am the Education Committee Chairman of the Antelope ValleyNRA Member's Council, which provides classes to the local community on firearm safety and education. 7. I intend to apply to become certified by the California Department of Justice to administer the Firearm Safety Certificate test this year. 5
1 2 3 4 5 7 9. In order for me to become a Firearm Safety Certificate instructor, I will be subject to the changes made by Senate Bill 3 and the subsequent regulations imposed by the California Department of Justice on the Firearm Safety Certificate program. year. 9. I intend to purchase a firearm that is not a handgun in Californi~ this Christopher Chiafullo (FFL Guard, LLC) Declaration. FFLGuard represents countless California FFLs and their employees, including Department of Justice certified Handgun Safety Certificate instructors and soon-to-be certified Firearm Safety Certificate instructors throughout California. 7. Many of our FFL clients and their employees in California also serve as certified Handgun Safety Certificate instructors (soon to be Firearm Safety Certificate instructors) in order to administer the required safety tests in their shops at the point of transfer. ARGUMENT 12 I. PLAINTIFFS ARE NOT ENTITLED TO RECOVER ATTORNEY'S FEES UNDER THE PRIVATE ATTORNEY GENERAL DOCTRINE BECAUSE THEIR OWN PERSONAL INTERESTS MOTIVATED BRINGING THEIR ACTION 14 Section.5 provides in pertinent part: "Upon motion; a court may award attorneys' fees 15 to a successful party against one or more opposing parties in any action which has resulted in the 1 enforcement of an important right affecting the public interest if: (a) a significant benefit, 17 whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of 1 persons, (b) the necessity and financial burden of private enforcement,... are such as to make the 19 award appropriate, and (c) such fees should not in the interest of justice be paid out of the 20 recovery, if any." In applying "the statutory criteria [the Courts] must consider whether: (1) plaintiffs' action 'has resulted in the enforcement of an important right affecting the public 22 interest,' (2) 'a significant benefit, whether pecuniary or nonpecuniary has been conferred on the 23 general public or a large class of persons' and (3) 'the necessity and financial burden of private 24 enforcement are such as to make the award appropriate.' [Where] plaintiffs' action has produced 25 no monetary recovery, factor '(c)' of section.5 is not applicable." (Woodland Hills 2 Residents Assn., Inc. v. City Council (1979) 23 Ca1.3d 917,934-935.) The moving party bears the burden of establishing each prerequisite to an award of attorney's fees under section.5.
1 (Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (20) 17 2 Cal.AppAth 37, 31.) 3 Also, Code of Civil Procedure section.5 is intended as a "bounty" for pursuing public 4 interest litigation, not a reward for litigants motivated by their own interests who coincidentally 5 serve the public. (Beach Colony II v. California Coastal Com. (195) 1 Cal.App.3d, 4.) "[Section.5's] purpose is to provide some incentive for the plaintiff who acts as a true 7 private attorney general, prosecuting a lawsuit that enforces an important public right and confers a significant benefit, despite the fact that his or her own financial stake in the outcome would not 9 by itself constitute an adequate incentive to litigate." (Satrap v. Pacific Gas & Electric Co. (199) 42 Cal.AppAth 72,0.) "When the record indicates that the primary effect of a lawsuit was to advance or vindicate 12 a plaintiff's personal economic interests, an award of fees under section.5 is improper." (Flannery v. California Highway Patrol (199) 1 Cal.App.4th 29, 34; see also California 14 Licensed Foresters Assn. v. California St. Bd. of Forestry (1994) 30 Cal.AppAth 52, 570 15 [section.5 fee claim denied where declarations in support of motion for preliminary 1 injunction evidenced plaintiff's significant pecuniary interest in the litigation].) Flannery 17 concerned the plaintiff's recovery of attorney's fees in an action against her employer and others 1 based on harassment and wrongful termination in violation of the Fair Employment and Housing 19 Act. (Id. at p. 32.) In concluding that the plaintiff was not entitled to an award of section.5 20 attorney's fees, the court found, in pertinent part, that "[w]hile plaintiff's lawsuit was based on the important right to be free from unlawful discrimination, its primary effect was the vindication 22 of her own personal right and economic interest." (Id. at p. 37.) 23 Here, as in Flannery v. California Highway Patrol, supra, 1 Cal.App.4th at p. 34 and 24 California Licensed Foresters Assn. v. California St. Bd. of Forestry, supra, 30 Cal.App.4th at p. 25 570, based upon the record in this case consisting of plaintiffs' judicial admissions set forth in 2 their original complaint (see Brown v. Aguilar (19) 202 Cal. 143, 149 ["While a pleader is not bound by allegations of evidence or conclusions of law, he is concluded by material averments of his pleading, and may not, as a rule, prove facts contrary thereto"]) and plaintiffs' declarations 7
1 submitted in support of their temporary restraining order application, the motivation for, and 2 effect of, plaintiffs' action is the advancement of their own personal interests. (See Original 3 Complaint,-r,-r 12-1; see also Kim Belemjian Declaration,-r,-r 4-; Jonathan Fairfield Declaration 4,-r,-r 7-9; T.J. Johnson Declaration,-r,-r -12; Matthew Pimentel Declaration,-r,-r 5-; Stanley Roy 5 Declaration,-r,-r 5-9; Christopher Chiafullo (FFL Guard, LLC) Declaration,-r,-r -7.) Plaintiffs cannot contend otherwise. 7 Plaintiffs brought this action to advance their respective personal interests. Such motivation belies plaintiffs' role as private Attorneys General. 9 II. PLAINTIFFS HAVE NOT CITED ANY AUTHORITY THAT STANDS FOR THE PROPOSITION THAT THEY ARE ENTITLED TO SECTION.5 ATTORNEYS' FEES IF THEIR PRIMARY MOTIVATION FOR BRINGING THEIR ACTION Is PERSONAL BUT N ON-PECUNIARY 12 14 15 1 17 1 19 20 22 23 24 25 2 Plaintiffs argue in their supporting memorandum that they are entitled to recover section.5 attorneys' fees because: Nothing on the record indicates that Plaintiffs were motivated by a financial interest in the outcome of the case, let alone that they were motivated primarily by those interests. The record instead establishes only that Plaintiffs have an actual interest in the FSC Program and so had a statutory right to notice and an opportunity to comment. Moreover, Plaintiffs in fact gained nothing financially, for the very regulations Plaintiffs challenged were formally adopted through Defendants' emergency regulatory package. (Supporting memo. at p..) Plaintiffs make this argument in support of their contention that the burden of private enforcement warrants plaintiffs' recovery of attorneys' fees, that is, according to plaintiffs, there is no pecuniary benefit to offset their litigation costs in determining economic burden. But plaintiffs fail to cite any authority that stands for the proposition that even if their primary purpose in bringing their action is to advance their own personal interests, but such interests are non-pecuniary, they are entitled to recover attorneys' fees. What is more, plaintiffs offer no credible evidence to establish that their respective motivations in bringing their action were either non-personal or non-pecuniary. Plaintiffs' declarations submitted in support of their motion are conclusory and self-serving regarding their respective motivations for bringing their action. Such assertions should be given little or no weight by the court, especially in light of the
1 fact that these assertions do not appear in plaintiffs' original complaint or plaintiffs' declarations 2 submitted in support of their TRO application and are in fact contradicted by plaintiffs' original 3 complaint and prior declarations. 4 Because plaintiffs cannot establish that their action was brought primarily for public 5 purpose they are not entitled to recover section.5 attorneys' fees. (See Flannery v. California Highway Patrol, supra, 1 Cal.App.4th at p. 34; California Licensed Foresters Assn. 7 v. California St. Bd. o/forestry, supra, 30 Cal.App.4th at p. 570.) III. IF THE COURT AWARDS PLAINTIFFS ATTORNEYS' FEES IT SHOULD RESTRICT THE AWARD TO FEES INCURRED THAT FURTHERED THE LITIGATION OF ISSUES OF 9 PUBLIC IMPORTANCE If the trial court decides to award attorneys' fees to plaintiffs, it "may legitimately restrict the award to only that portion of the attorneys' efforts that furthered the litigation of issues of 12 public importance." (Conservatorship a/whitley (20) 50 Cal.4th 120,122; City a/maywood v. Los Angeles Unified School Dist. (2012) 20 Cal.App.4th 32, 432, 435.) Similarly, the Court 14 should restrict the award to only those plaintiffs who have demonstrated that they were not 15 primarily motivated to bring this action by their own personal interests. 1 IV. PLAINTIFFS ARE NOT ENTITLED TO ORAL TESTIMONY AT THE MOTION HEARING 17 For each of two reasons, this Court should also deny plaintiffs' request for oral testimony. 1 First, it does not matter what else this lawsuit may have been a catalyst for where, as here, 19 personal interests motivated plaintiffs' action, plaintiffs are not entitled to recover section.5 20 attorneys' fees. Second, plaintiffs' request for oral testimony is an improper and thinly veiled attempt to conduct post judgment discovery during the hearing on their motion. In fact, one of 22 the witnesses plaintiffs seek to "depose" on the witness stand is "Defendants' Person Most 23 Knowledgeable about Defendants' initiation of formulating regulations for the FSC Program and 24 safe-handling demonstrations." Unlike for a deposition under Code of Civil Procedure section 25 2025.230, plaintiffs cannot compel "a person most knowledgeable" to attend the hearing as a 2 witness. (See Code Civ. Proc., 197, subd. (b).) This Court has previously rejected plaintiffs' request to conduct discovery for their catalyst theory. The Court should again deny their discovery request. 9
1 For the reasons stated above, defendants request that plaintiffs' motion for attorneys' fees 2 be denied in its entirety. 3 Dated: December 3, 2015 4 5 Respectfully Submitted, KAMALA D. HARRIS Attorney General of California STEPAN A. HAYTAYAN Supervising Deputy Attorney General 7 9 12 JEFFRE A. RICH Deput Attorney General eys for Kamala D. Harris, in her official capacity as Attorney General for the State of California; Stephen Lindley, in his official capacity as Chief of the California Department of Justice Bureau of Firearms; and the California Department of Justice 14 15 SA2015009 32304731 1 17 1 19 20 22 23 24 25 2
DECLARATION OF SERVICE BY OVERNIGHT COURIER Case Name: Belemjian, Kim, et al. v. Kamala D. Harris, etal. No.: ls-ce-cg-000029 I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 1 years of age or older and not a party to this matter; my business address is: 00 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550. On December 3,2015, I served the attached MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND REQUEST FOR ORAL TESTIMONY by placing a true copy thereof enclosed in a sealed envelope with the GOLDEN STATE OVERNIGHT COURIER SERVICE, addressed as follows: Sean Brady' Anna M. Barvir Michel & Associates, P.c. East Ocean Blvd., Suite 200 Long Beach CA 9002-4079 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on December 3, 2015, at Sacramento, California. Tracie L. Campbell Declarant ~d?ti~ C~~l. Slgnatur SA2015009 32305309.doc32305309.DOC
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