Cross et al v. City and County of San Francisco et al

OPPOSITION/RESPONSE

N.D. Cal.March 14, 2019

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLS.’ OPP’N TO DEFS.’ REQ. FOR JUDICIAL NOTICE ISO DEFS.’ MOT. TO DISMISS AND TO STRIKE FIRST AMENDED COMPL. / CASE NO. 3:18-CV-06097-EMC DURIE TANGRI LLP DARALYN J. DURIE (SBN 169825) ddurie@durietangri.com MATTHEW W. SAMUELS (SBN 294668) msamuels@durietangri.com LAUREN E. KAPSKY (SBN 321395) lkapsky@durietangri.com ERIC G. MESSINGER (SBN 320298) emessinger@durietangri.com WHITNEY O’BYRNE (pro hac vice) wobyrne@durietangri.com 217 Leidesdorff Street San Francisco, CA 94111 Telephone: 415-362-6666 Facsimile: 415-236-6300 POLICYLINK NOVELLA Y. COLEMAN (SBN 281632) novella@policylink.org 1438 Webster Street, Suite 303 Oakland, CA 94612 Telephone: 510-663-2333 Facsimile: 510-663-9684 ACLU FOUNDATION OF NORTHERN CALIFORNIA MICAELA DAVIS (SBN 282195) mdavis@aclunc.org ABRE’ LEANN CONNER (SBN 306024) aconner@aclunc.org CHRISTINE P. SUN (SBN 218701) csun@aclunc.org JAMIE L. CROOK (SBN 245757) jcrook@aclunc.org 39 Drumm Street San Francisco, CA 94111 Telephone: 415-621-2493 Facsimile: 415-255-8437 AMERICAN CIVIL LIBERTIES UNION FOUNDATION CRIMINAL LAW REFORM PROJECT EZEKIEL R. EDWARDS (pro hac vice) eedwards@aclu.org 125 Broad Street, 18th Floor New York, NY 10004-2400 Telephone: 212-549-2610 Facsimile: 212-549-2651 Attorneys for Plaintiffs Tiffany Cross, Shalonda Adams, Crystal Anthony, Arron Lee Mathews, Acacia McNeal, Tiana Reddic, and Darlene Francine Rouse IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION TIFFANY CROSS, SHALONDA ADAMS, CRYSTAL ANTHONY, ARRON LEE MATHEWS, ACACIA MCNEAL, TIANA REDDIC and DARLENE FRANCINE ROUSE. Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, MIKE REDMOND, in his individual capacity, JASON CHERNISS, in his individual capacity, FRANCIS J. HAGAN, in his individual capacity, RONALD T. LIBERTA, in his individual capacity, DARREN NOCETTI, in his individual capacity, RYAN R. CROSBY, in his individual capacity, JOHN PATRICK CUNNIE, in his individual capacity, MURRAY P. DAGGS, in his individual capacity, BRITT D. ELMORE, in his individual capacity, DAVID A. GOFF, in his individual capacity, THOMAS J. LEE, in his individual capacity, KENNETH R. Case No. 3:18-cv-06097-EMC PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS AND TO STRIKE FIRST AMENDED COMPLAINT (RULE 12(b)(6) AND 12(f)) Date: April 3, 2019 Time: 10:30 a.m. Ctrm: 5-17th Floor Judge: Honorable Edward M. Chen Case 3:18-cv-06097-EMC Document 70 Filed 03/14/19 Page 1 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLS.’ OPP’N TO DEFS.’ REQ. FOR JUDICIAL NOTICE ISO DEFS.’ MOT. TO DISMISS AND TO STRIKE FIRST AMENDED COMPL. / CASE NO. 3:18-CV-06097-EMC MACDONALD, in his individual capacity, BRENTON THOMAS REEDER, in his individual capacity, DANIEL P. ROSAIA, in his individual capacity, ANTHONY M. SCAFANI, in his individual capacity, DANIEL C. SOLORZANO, in his individual capacity, AND JOHN DOES 1 THROUGH 10, in their individual capacities. Defendants. Case 3:18-cv-06097-EMC Document 70 Filed 03/14/19 Page 2 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PLS.’ OPP’N TO DEFS.’ REQ. FOR JUDICIAL NOTICE ISO DEFS.’ MOT. TO DISMISS AND TO STRIKE FIRST AMENDED COMPL. / CASE NO. 3:18-CV-06097-EMC I. INTRODUCTION In connection with their Motion to Dismiss and to Strike First Amended Complaint, ECF No. 54, Defendants City and County of San Francisco (“the City”), Mike Redmond, Jason Cherniss, Francis Hagan, Ronald Liberta, Darren Nocetti, Ryan Crosby, John Cunnie, Murray Daggs, Britt Elmore, David Goff, Thomas Lee, Kenneth MacDonald, Brenton Reeder, Daniel Rosaia, Anthony Scafani, and Daniel Solorzano (collectively, “Defendants”) seek judicial notice of eight exhibits. Req. for Judicial Notice in Support of Defs.’ Mot. to Dismiss and to Strike First Amended Compl., ECF No. 55 (hereinafter “RJN”). As a threshold matter, Defendants have not authenticated any of the documents attached to their RJN nor identified “which specific facts contained therein are allegedly” indisputable. This is grounds for denial of the RJN. Malasky v. Julian, No. 16-CV-04102-DMR, 2018 WL 4635862, at *4 (N.D. Cal. Sept. 24, 2018); First Mercury Ins. Co. v. Great Divide Ins. Co., 241 F. Supp. 3d 1028, 1045 (N.D. Cal. 2017). Moreover, Defendants’ RJN is an attempted end-run around the well-settled rule that at the pleading stage, the Court’s consideration is generally limited to the four corners of the complaint. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam). Although Defendants bear the burden to persuade the Court that judicial notice is proper, Defendants make no attempt in the RJN or in their Memorandum of Points and Authorities in Support of their Motion to Dismiss and to Strike First Amended Complaint (“Defs.’ Mem.”), ECF No. 54-1, to meet this burden. Defendants have failed to show that the facts of which they ask the Court to take judicial notice are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to a reliable and accurate source. For all of these reasons, and as set forth below, Plaintiffs object to Defendants’ RJN and ask that the Court deny judicial notice of Exhibit A in its entirety, Exhibit B in its entirety, Exhibit C in its entirety, Exhibit D in its entirety, Exhibit E except insofar as it shows the procedural history of the consolidated criminal cases, Exhibit F except insofar as it states the Department of Emergency Management’s policy for record retention, Exhibit G in its entirety, and Exhibit H except insofar as it shows that a hearing was held in the consolidated criminal cases on May 9, 2016. Case 3:18-cv-06097-EMC Document 70 Filed 03/14/19 Page 3 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PLS.’ OPP’N TO DEFS.’ REQ. FOR JUDICIAL NOTICE ISO DEFS.’ MOT. TO DISMISS AND TO STRIKE FIRST AMENDED COMPL. / CASE NO. 3:18-CV-06097-EMC II. LEGAL STANDARD Pursuant to Rule 201 of the Federal Rules of Evidence, a court may take judicial notice of adjudicative facts that are not subject to reasonable dispute. See United States v. Richie, 342 F.3d 903, 908–09 (9th Cir. 2003). Facts are indisputable only if they (1) are generally known within the trial court’s territorial jurisdiction, or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Id. (citing Fed. R. Evid. Rule 201). As the requesting parties, Defendants bear the burden of persuading the Court that a particular fact is a proper matter for judicial notice. See Harrison v. Milligan, No. C 09-4665 SI PR, 2012 WL 1835428, at *1 (N.D. Cal. May 21, 2012) (specifying that the burden consists of “persuading the court that the particular fact is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to a source whose accuracy cannot reasonably be questioned”); Newman v. San Joaquin Delta Cmty. Coll. Dist., 272 F.R.D. 505, 516 (E.D. Cal. 2011). “The judicial notice process is not the normal way to present documentary evidence. It is reserved for the very narrow category of evidence that is not subject to reasonable dispute.” Pratt v. Hedrick, No. C 13-4557 SI (pr), 2015 WL 3880383, at *2 (N.D. Cal. June 23, 2015). While a court may take judicial notice of a document itself because, for example, it is a public record, if the facts stated in the document are subject to reasonable dispute, judicial notice of those facts is improper. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018), petition for cert. filed sub nom., Hagan v. Khoju, No. 18-1010 (Feb. 4, 2019). III. ARGUMENT A. Exhibit A – April 25, 2011 Memorandum to U.S. Attorney Melinda Haag et al. Plaintiffs object to judicial notice of Exhibit A in its entirety. The April 25, 2011 Memorandum sets out a proposal from several Assistant U.S. Attorneys to target drug trafficking crimes in the Tenderloin neighborhood of San Francisco using 21 U.S.C. § 860. Defendants cite Exhibit A to make factual assertions beyond the four corners of the First Amended Complaint (“FAC”), ECF No. 48, about the basis for Plaintiffs’ prosecutions, drug dealing in the Tenderloin neighborhood of San Francisco, the origin and history of the Operation, and the work-sharing arrangements of a task force established by the Drug Enforcement Administration (“DEA”). Defs.’ Mem. at 1–2. Case 3:18-cv-06097-EMC Document 70 Filed 03/14/19 Page 4 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PLS.’ OPP’N TO DEFS.’ REQ. FOR JUDICIAL NOTICE ISO DEFS.’ MOT. TO DISMISS AND TO STRIKE FIRST AMENDED COMPL. / CASE NO. 3:18-CV-06097-EMC Judicial notice of Exhibit A is improper. Courts routinely deny judicial notice of memoranda prepared by governmental agencies or government attorneys when relied upon for facts asserted therein. See Penn. Dep’t of Hum. Servs. v. United States, 897 F.3d 497, 514 (3d Cir. 2018) (affirming denial of judicial notice of agency memorandum, the contents of which were disputed); Kushner v. Beverley Enters, Inc., 317 F.3d 820, 829–30 (8th Cir. 2003) (refusing to take judicial notice of a criminal sentencing memorandum from a separate case that was offered for the truth of factual matters asserted therein); Pratt, 2015 WL 3880383, at *1–2 (denying judicial notice of factual statements in memoranda generated by prison officials). B. Exhibit B – Indictments Plaintiffs object to judicial notice of Exhibit B in its entirety. Exhibit B consists of criminal indictments of the seven Plaintiffs, each filed in January 2015, charging them with violations of 21 U.S.C. §§ 841 and 860. Defendants do not rely on the indictments anywhere in their Memorandum. For this reason, the request for judicial notice of Exhibit B should be denied as moot. C. Exhibit C – Incident Reports Plaintiffs object to judicial notice of Exhibit C in its entirety. Exhibit C consists of incident reports for the arrests of the seven Plaintiffs.1 Defendants rely on Exhibit C to assert that Police Department members arrested Plaintiffs pursuant to warrants obtained by the U.S. Attorney’s Office in or around February 2015 and that a suspect’s race appears in videotapes, mug shots, and on the incident reports. Defs.’ Mem. at 3, 5. Plaintiffs object to the request for judicial notice of the incident reports. First, the incident reports are unnecessary to show the fact that Plaintiffs were arrested. Plaintiffs themselves allege (and do not dispute) that they were each arrested by Police Department members between late January and February 2015. FAC ¶¶ 212, 224, 250, 265, 279, 297, 306; see Ezor v. State Bar of California, No. 18-16003, 2019 WL 911996, at *1 (9th Cir. Feb. 22, 2019) (denying judicial notice of material that was already in the record). Second, the incident reports do not show the factual assertion that Defendants seek to make. 1 The incident report for Plaintiff Darlene Rouse also contains reports for several individuals who are not Plaintiffs. These individuals were not arrested. Case 3:18-cv-06097-EMC Document 70 Filed 03/14/19 Page 5 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 PLS.’ OPP’N TO DEFS.’ REQ. FOR JUDICIAL NOTICE ISO DEFS.’ MOT. TO DISMISS AND TO STRIKE FIRST AMENDED COMPL. / CASE NO. 3:18-CV-06097-EMC Exhibit C does not contain warrants obtained by the U.S. Attorney’s Office for Plaintiffs’ arrests or otherwise show that the arrests were executed pursuant to warrants obtained by the U.S. Attorney’s Office. The existence of warrants is only alluded to in some narrative summaries by the arresting officers. Those summaries are not indisputable, as set forth next. Third, the information contained in the incident reports does not consist of facts that are generally known or beyond dispute. In Pina v. Henderson, 752 F.2d 47 (2d Cir. 1985), the court held that judicial notice was improper with respect to both the fact that a police report was prepared and to the contents therein. Id. at 50; see also Ritchie, 342 F.3d at 909 (holding that although a court “may take judicial notice of some public records,” the contents of a police report are not a proper subject of judicial notice); Wilson v. Hays, 228 F. Supp. 3d 1100, 1104 n.2 (S.D. Cal. 2017) (denying judicial notice of a crime/incident report even though both sides requested notice). D. Exhibit D – January 28, 2015 Email from Charles Atakora to Defendant Darren Nocetti with Map Attachment Plaintiffs object to Exhibit D in its entirety. Exhibit D appears to be an email forward from Charles Atakora, an individual with a U.S. Department of Justice email address, to Defendant Darren Nocetti, a Police Department sergeant. The email is dated January 28, 2015, which is after the surveillance and buy-walks of Plaintiffs. FAC ¶ 71 (alleging that the surveillance and targeting for buy- walks of Plaintiffs took place between October 2014 and December 2014). Defendants rely on Exhibit D to make factual assertions that are beyond the four corners of the FAC. They claim that in furtherance of the Operation, the U.S. Attorney’s Office shared information with the Police Department and the DEA in the form of a map showing locations in San Francisco’s Tenderloin and Soma neighborhoods that were within 1,000 feet of a school, where the Operation would be focused. Defs.’ Mem. at 3. Plaintiffs object to the request for judicial notice of Exhibit D. First, there is no information as to who created the map, how it was created, how it was subsequently used by anyone in the U.S. Attorney’s Office, the DEA, or the Police Department, or whether it was used at all. For these reasons, it does not contain facts beyond reasonable dispute. Second, Exhibit D post-dates the targeting of Plaintiffs for buy- walks and surveillance and so cannot provide any indisputable facts about selective enforcement against Case 3:18-cv-06097-EMC Document 70 Filed 03/14/19 Page 6 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 PLS.’ OPP’N TO DEFS.’ REQ. FOR JUDICIAL NOTICE ISO DEFS.’ MOT. TO DISMISS AND TO STRIKE FIRST AMENDED COMPL. / CASE NO. 3:18-CV-06097-EMC Plaintiffs. Cf. Ruiz v. City of Santa Maria, 160 F.3d 543, 548 n.13 (9th Cir. 1998) (denying judicial notice of facts subsequent to the event in question and not relevant to issues before the court). Third, internal agency communications are not proper subjects of judicial notice. See supra Part A. E. Exhibit E – Docket from Consolidated Criminal Cases and Discovery Order Plaintiffs object to judicial notice of Exhibit E except insofar as it memorializes the procedural history of the criminal cases that were consolidated as Case No. 3:14-cr-00643-EMC (N.D. Cal.). Exhibit E contains the docket from Case No. 3:14-cr-00643-EMC (“Docket”) and an order captioned ‘Order Granting Defendants’ Motion to Preserve Evidence; and Order to Show Cause Directed to SFPD’ (“Order”). Defendants cite the Docket in support of a statement that the OSS Arrestees’ motion for discovery relating to selective enforcement was served on the U.S. Attorney’s Office but not the San Francisco Police Department. Defs.’ Mem. at 3. Defendants provide no pin cite to a particular page or pages in the 40-page Docket for this assertion. Defendants also cite the Docket to support their assertion that the U.S. Attorney’s Office did not dismiss the indictments against the OSS Arrestees “even after the [Federal Public Defender] pointed out that the 37 persons that the [U.S. Attorney’s Office] prosecuted under [The Operation] were black,” and instead waited several more months to dismiss the charges, “on the eve of the City’s opportunity to respond to allegations of racism.” Defs.’ Mem. at 11. Again, there is no pin cite to a particular page or pages in the 40-page Docket for these assertions. The Docket and the Order are public court records, and it would generally be appropriate for the Court to take judicial notice of them for purposes of showing the procedural history of the consolidated criminal cases. Plaintiffs do not dispute that the OSS Arrestees moved for discovery relating to selective enforcement against the United States and not against the City. However, the Docket and Order do not establish beyond dispute whether the Police Department had notice of the motion for discovery relating to selective enforcement and if it did, when it obtained such notice. Nor does the Docket or Order establish that the City lacked an opportunity to respond to allegations of racism before the charges were dropped, as the City claims. Plaintiffs therefore ask that the Court deny judicial notice of Exhibit E for the purposes asserted by Defendants. Case 3:18-cv-06097-EMC Document 70 Filed 03/14/19 Page 7 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 PLS.’ OPP’N TO DEFS.’ REQ. FOR JUDICIAL NOTICE ISO DEFS.’ MOT. TO DISMISS AND TO STRIKE FIRST AMENDED COMPL. / CASE NO. 3:18-CV-06097-EMC F. Exhibit F – Department of Emergency Management Records Retention Policy Plaintiffs object to Exhibit F except to the extent that it memorializes a record retention policy of the City’s Department of Emergency Management. Defendants rely on Exhibit F to assert that the records retention policy is to preserve records for three years and that “those records have now disappeared.” Defs.’ Mem. at 8. Defendants do not identify which records have allegedly disappeared but presumably refer to the policy for dispatch records. See Defs.’ RJN at 3. Plaintiffs do not object to judicial notice of the Records Retention Policy for the limited purpose of showing that the policy states that records should be maintained for three years. Plaintiffs do object to judicial notice of the factual assertion that the relevant dispatch records “have now disappeared.” The existence of a policy requiring retention for three years does not establish beyond dispute what the triggering date is for commencing the three-year retention period, that the dispatch records have in fact “disappeared,” or why Defendants claim the records have “disappeared.” Given the criminal proceedings that were not dismissed until January 2017, the policy on its face would require retention at least through 2020, and longer given the litigation hold that applies at the commencement of this action in October 2018. G. Exhibit G – Declarations by Assistant U.S. Attorneys Plaintiffs object to Exhibit G in its entirety. Exhibit G consists of declarations submitted by five Assistant U.S. Attorneys in the consolidated criminal cases, in which the attorneys made statements about their reasons for recommending federal prosecution for particular individuals as part of the Operation.2 The declarations refer to surveillance videos, which Defendants did not provide as part of their RJN. Defendants rely on Exhibit G to claim that the U.S. Attorney’s Office “admitted that they had the videotapes that showed the race of the persons they decided to prosecute” and at a hearing before this Court the federal government represented that the Police Department “refused to respond to racism allegations.” Defs.’ Mem. at 11, 14. These factual assertions are subject to reasonable dispute and are therefore beyond the scope of 2 The Declaration of Sarah Hawkins is not dated. Case 3:18-cv-06097-EMC Document 70 Filed 03/14/19 Page 8 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 PLS.’ OPP’N TO DEFS.’ REQ. FOR JUDICIAL NOTICE ISO DEFS.’ MOT. TO DISMISS AND TO STRIKE FIRST AMENDED COMPL. / CASE NO. 3:18-CV-06097-EMC what the Court can judicially notice pursuant to Rule 201 of the Federal Rules of Evidence, notwithstanding that they appear in public court documents. See Khoja, 899 F.3d at 999; Richie, 342 F.3d at 908–09 (affirming denial of judicial notice of declaration attached to a motion to dismiss and holding that “[a]ffidavits and declarations . . . are not allowed as pleading exhibits unless they form the basis of the complaint”); Rezentes v. Sears, Roebuck & Co., 729 F. Supp. 2d 1197, 1206 (D. Haw. 2010) (denying judicial notice of declaration of defendant’s employee). H. Exhibit H – Hearing Transcript Exhibit H is the transcript of the May 9, 2016 hearing on the OSS Arrestees’ motion to compel discovery. Plaintiffs object to judicial notice of Exhibit H except insofar as it confirms a hearing was held before the Court in the consolidated criminal cases on May 9, 2016. Defendants cite Exhibit H in support of their assertion that they did not refuse to respond to discovery because neither the Court, nor the Federal Public Defender, nor the U.S. Attorney’s Office told the City or its Police Department that they should respond to discovery requests. Defs.’ Mem. at 14. There are no statements in the transcript by the City or its Police Department that establish this. Defendants provide no pin cite for the 76-page transcript to allow the Court or Plaintiffs evaluate the verity of their reliance on this exhibit to establish a judicially noticeable fact. In any event, assuming that there were some statement in the transcript consistent with Defendants’ assertion in their Motion to Dismiss and to Strike, judicial notice of the hearing transcript for the truth of a matter asserted therein is improper. Neylon v. County of Inyo, No. 1:16-cv-0712 AWI JLT, 2016 WL 6834097, at *3 (E.D. Cal. Nov. 21, 2016) (taking judicial notice of the existence of a hearing transcript but not “reasonably disputed facts” contained therein and noting that “the Court will not sift through all 139 pages of the transcript”). IV. CONCLUSION Plaintiffs accordingly ask that the Court deny Defendants’ RJN, except for: Exhibit E insofar as it shows the procedural history of the consolidated criminal cases, Exhibit F insofar as it states the Department of Emergency Management’s policy for record retention, and Exhibit H insofar as it shows that a hearing was held in the consolidated criminal cases on May 9, 2016. Case 3:18-cv-06097-EMC Document 70 Filed 03/14/19 Page 9 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLS.’ OPP’N TO DEFS.’ REQ. FOR JUDICIAL NOTICE ISO DEFS.’ MOT. TO DISMISS AND TO STRIKE FIRST AMENDED COMPL. / CASE NO. 3:18-CV-06097-EMC Dated: March 14, 2019 By: DURIE TANGRI LLP /s/ Eric G. Messinger DARALYN J. DURIE MATTHEW W. SAMUELS LAUREN E. KAPSKY ERIC G. MESSINGER WHITNEY O’BYRNE Attorneys for Plaintiffs Tiffany Cross, Shalonda Adams, Crystal Anthony, Arron Lee Mathews, Acacia McNeal, Tiana Reddic, and Darlene Francine Rouse Dated: March 14, 2019 By: ACLU FOUNDATION OF NORTHERN CALIFORNIA /s/ Jamie L. Crook MICAELA DAVIS ABRE’ LEANN CONNER CHRISTINE P. SUN JAMIE L. CROOK Attorneys for Plaintiffs Tiffany Cross, Shalonda Adams, Crystal Anthony, Arron Lee Mathews, Acacia McNeal, Tiana Reddic, and Darlene Francine Rouse FILER’S ATTESTATION Pursuant to Civil L.R. 5-1(i)(3), regarding signatures, I, Eric G. Messinger, attest that concurrence in the filing of this document has been obtained. Dated: March 14, 2019 By: /s/ Eric G. Messinger ERIC G. MESSINGER Case 3:18-cv-06097-EMC Document 70 Filed 03/14/19 Page 10 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 PLS.’ OPP’N TO DEFS.’ REQ. FOR JUDICIAL NOTICE ISO DEFS.’ MOT. TO DISMISS AND TO STRIKE FIRST AMENDED COMPL. / CASE NO. 3:18-CV-06097-EMC CERTIFICATE OF SERVICE I hereby certify that on March 14, 2019 the within document was filed with the Clerk of the Court using CM/ECF which will send notification of such filing to the attorneys of record in this case. /s/ Eric G. Messinger ERIC G. MESSINGER Case 3:18-cv-06097-EMC Document 70 Filed 03/14/19 Page 11 of 11