KIRBY v. IMMOOS FIRE PROTECTION

Respondent’s Request for Judicial Notice in Support of Answer Brief on the Merits

Cal.March 21, 2011

SupremeCourt CopyCase Number S185827 INTHE SUPREME COURT OF THE STATE OF CALIFORNIA ANTHONYKIRBYetal. SUPREME COURT Plaintiffs and Appellants, FlLEM vs. MAR 2.1 2011 IMMOOSFIRE PROTECTION,INC., Frederick K. Ohinen vierk Defendant and Respondent. Tamme Deouly Petition for Review of a Decision of the Court of Appeal Third Appellate District Case Number C062306 RESPONDENT’S MOTION FOR JUDICIAL NOTICE IN SUPPORT OF.ANSWERBRIEF ON THE MERITS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATIONOF JIMMIE E. JOHNSON IN SUPPORT THEREOF; PROPOSED ORDER Robert L. Rediger, Esq. (CA State Bar No. 109392) Laura C. McHugh, Esq. (CA State Bar No. 180930) Jimmie E. Johnson, Esq. (CA State Bar No. 223344) Rediger, McHugh & Owensby, LLP 555 Capitol Mall, Suite 1240 Sacramento, California 95814 Telephone: (916) 442-0033 Facsimile: (916) 498-1246 Attorneys for Respondent, IMMOOSFIRE PROTECTION,INC. a w y a a s Case Number 8185827 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ANTHONYKIRBYetal. Plaintiffs and Appellants, VS. IMMOOSFIRE PROTECTION,INC., Defendant and Respondent. Petition for Review of a Decision of the Court of Appeal Third Appellate District Case Number C062306 RESPONDENT’S MOTION FOR JUDICIAL NOTICE IN SUPPORT OF ANSWERBRIEF ON THE MERITS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF JIMMIE E. JOHNSON IN SUPPORT THEREOF; PROPOSED ORDER Robert L. Rediger, Esq. (CA State Bar No. 109392) Laura C. McHugh, Esq. (CA State Bar No. 180930) Jimmie E. Johnson, Esq. (CA State Bar No. 223344) Rediger, McHugh & Owensby, LLP 555 Capitol Mall, Suite 1240 Sacramento, California 95814 Telephone: (916) 442-0033 Facsimile: (916) 498-1246 Attorneys for Respondent, IMMOOSFIRE PROTECTION,INC. a s a s TABLE OF CONTENTS RESPONDENT’S MOTION FOR JUDICIAL NOTICEIN SUPPORT OF ANSWER BRIEF ON THE MERITS 0... MEMORANDUM OF POINTS AND AUTHORITIES........... 7 DECLARATION OF JIMMIE E. JOHNSON...eee 22 PROPOSED ORDER.....ic eccceccceeee cine ceeeeeseeeeesneeesenteesseenseeeniage 28 1 & s e s a s RESPONDENT’S MOTION FOR JUDICIAL NOTICE IN SUPPORT OF ANSWERBRIEF ON THE MERITS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF JIMMIE E. JOHNSON IN SUPPORT THEREOF; PROPOSED ORDER TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE; THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT; APPELLANTS AND THEIR ATTORNEYS OF RECORD: Pursuant to California Evidence Code sections 450 et seq., and California Rules of Court, Rules 8.252 and 8.520, Respondent ImmoosFire Protection, Inc. (“Respondent Immoos”) respectfully moves this Court to take judicial notice of the documents listed below. Said documents are relevant in determining the correct interpretations of Labor Code sections 218.5, 226.7, and 1194. The correct interpretations of these sections, in turn, are material to both of the issues under review in this case, namely: 1) Does Labor Codesection 1194 apply to a cause of action alleging meal and rest period violations (Lab. Code, § 226.7) or may attorney’s fees be awarded under Labor Code section 218.5; and 2) Is [this Court’s] analysis affected by whether the claims for meal and rest periods are brought alone or are accompanied by claims for minimum wageandovertime. Exhibit A': Introduced version of Assembly Bill 633 (1999), February 19, 1999 [first introduced version of Labor Code section 226.7] Exhibit B: Amended version of Assembly Bill 1652 (1999), September 3, 1999 [second introduced version of Labor Codesection 226.7] Exhibit C: Amended version of Assembly Bill 1652 (1999), September 8, 1999 [removal of unilateral attorney’s fee provision from Labor Code section 226.7] ' All documentsat issue are attached hereto underthe same expressed identifier. Exhibit D: Exhibit E: Exhibit F: Exhibit G Exhibit H: Exhibit f: Exhibit J: Exhibit K: Exhibit L: Exhibit M: Exhibit N: Exhibit O: Exhibit P: Introduced version of Assembly Bill 2509 (2000), February 24, 2000 [third introduced version of Labor Codesection 226.7] Assembly Committee on Labor and Employmentbill report of Assembly Bill 2509 (2000), April 12, 2000 Amended version of Assembly Bill 2509 (2000), August 25, 2000 [removal of unilateral attorney’s fee provision from Labor Codesection 226.7] Statutes 2000, Chapter 876 [amendment of Section 218.5; enactment of Section 226.7] Governor’s Chaptered Bill File for Assembly Bill 2509 (2000): Enrolled Bill Report from Department of Industrial Relations, September 13, 2000 Senate Judiciary Committee bill report of Assembly Bill 2509 (2000), August 8, 2000 Statutes 1986, Chapter 1211 [enactment of Section 218.5] Senate Committee on Judiciary bill report of Senate Bill 2570 (1986), 1986 Assembly Committee on Judiciary bill report of Senate Bill 2570 (1986), July 8, 1986 Senate Rules Committee bill report of Senate Bill 2570 (1986), May 6, 1986 Governor’s Chaptered Bill File for Senate Bill 2570 (1986): Enrolled Bill Report from Department of Industrial Relations, August 26, 1986 CACTIJury Instruction No. 2701 (2011 edition) Industrial Welfare Commission Publication MW-2007 (Official Notice of California Minimum Wage) e s Exhibit Q: Exhibit R: Exhibit S: Exhibit T: Exhibit U: Exhibit V: Exhibit W: Exhibit X: Exhibit Y: Exhibit Z: Exhibit AA: Exhibit BB: Exhibit CC: Exhibit DD: Statutes 1913, Chapter 324 [enactment of Section 1194] California Constitution as adopted May 7, 1879 Publication by Arthur Norman Holcombe, “The effects of the legal minimum wage for women”(1917) Publication by Consumers’ League of New York State and Consumers’ League of the City of New York, “Women’s wages today: One reason for a legal minimum in New YorkState” (1920) CACTIJury Instruction No. 2702 (2011 edition) Statutes 1961, Chapter 408 [amendment of Section 1194] Statutes 1936, Chapter 90 [codification of Section 1194] Public Laws, 52 Statute, Chapter 676 [enactment of FLSA] Public Laws, 63 Statute, Chapter 352 [amendment of FLSA] Statutes 1972, Chapter 1122 [amendment of Section 1194] Governor’s Chaptered Bill File for Assembly Bill 256 (1972): Enrolled Bill Report from Department of Finance, August 14, 1972 Legislative Counsel’s Digest of Statutes 1972, Chapter 1122 [amendment of Section 1194] McGannv. United Postal Service, Inc. (Feb. 24, 2011, B221709) — Cal.App.4th _ (Published Opinion) Statutes 1972, Chapter 1321 [enactment of Labor Code section 227.3] G 2 Exhibit EE: Governor’s Chaptered Bill File for Senate Bill 548 (1961): Memo from Department of Industrial Relations to Governor’s Office, May 11, 1961 Exhibit FF: Senate Bill 363 (1872) [signed and enacting first Code of Civil Procedure on March 11, 1872, including Section 22 which provides original codified definition of “action’’] Exhibit GG: Statutes 1933, Chapter 742 [amendment of Code of Civil Procedure section 22] Exhibits A through D, and F are true and correct copies of documents obtained by Respondent’s counsel from the Office of the Legislative Counsel of California pertaining to Section 226.7; Assembly Bill 633 (1999), which included the first proposed version of Section 226.7; amended versions of Section 226.7 in Assembly Bill 1652 (1999), and the enacted version within Assembly Bill 2509 (2000). Exhibits E, and G through | are true and correct copies of documents obtained by Respondent’s counsel from the California State Archives pertaining to Section 226.7 and Assembly Bill 2509 (2000), which enacted Section 226.7 and amended Section 218.5. Exhibits J through N are true and correct copies of documents obtained by Respondent’s counsel from the California State Archives pertaining to Section 218.5 and Senate Bill 2570 (1986), which enacted Section 218.5. Exhibits O and U are true and correct copies of documents obtained by Respondent’s counsel from the official California Courts website at http://www.courtinfo.ca.gov/jury/civiljuryinstructions/juryinst.htm, pertaining to CACI Jury Instructions. Exhibit P is a true and correct copy of a document obtained by Respondent’s counsel from the official Industrial Wage Commission & e s website at http://www.dir.ca.gov/iwc/minwage2007.pdf, pertaining to official notices of the California Minimum Wage. Exhibits Q, R, V, W, Z, AA, and EEaretrue and correct copies of documents obtained by Respondent’s counsel from the California State Archives pertaining to Section 1194, and various amendments to said section. Exhibits $ and T are true and correct copies of documents obtained by Respondent’s counsel from the Harvard Library system pertaining to the early-20" Century, commonusage ofthe term “legal minimum wage.” Exhibits X and Y are true and correct copies of documents obtained by Respondent’s counsel from LexisNexis pertaining to the employment of the term “overtime payments” within the federal Fair Labor Standards Act of 1938 (‘FLSA’). Exhibit BB is a true and correct copy of a document obtained by Respondent’s counsel from the Bernard E. Witkin State Law Library of California pertaining to Section 1194, and Statutes 1972, Chapter 1122, which amendedsaid section. Exhibit CC is a true and correct copy of a document obtained by Respondent’s counsel from LexisNexis pertaining to the recent published opinion of McGann v. United Postal Service, Inc. (Feb. 24, 2011, B221709) —_ Cal.App.4th _. Exhibit DD is a true and correct copy of a document obtained by Respondent’s counsel from the Californiffa State Archives pertaining to Labor Codesection 227.3. Exhibits FF and GG are true and correct copies of documents obtained by Respondent’s counsel from the California State Archives pertaining to Code of Civil Procedure section 22, and the amendment of said section. a s e s The documents are described, and indicated, under penalty of perjury to be true and correct copies of the originals in the declaration of Respondent’s counsel, Jimmie E. Johnson, included herein. The documents were not presented to the trial court, nor do they relate to proceedings occurring after the order that is the subject of the appeal. This request is based upon the instant motion; and the memorandum of points and authorities and declaration of Respondent’s counsel, Jimmie E. Johnson,included herein. DATED: March /0’, 2011. REDIGER, McHUGH & OWENSBY,LLP 4:E. JO ISON Ato neys forRespondent, IMMOOSFIRE PROTECTION, INC. a MEMORANDUMOFPOINTS AND AUTHORITIES IN SUPPORT OF RESPONDENT?’S MOTION FOR JUDICIAL NOTICE Evidence Code section 459 provides reviewing courts the same powerto take judicial notice of documents as trial courts under Evidence Code sections 450 et seg. (Evid. Code, § 459.) Jn tandem, California Rules of Court, Rules 8.252 and 8.520 provide that a court may take judicial notice of documents relevant to the issues under review. (Cal. Rules of Court, rules 8.252(a)(2)(A), 8.520(g).) Legislative history is relevant to statutory interpretation. (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1153 (‘Big Creek Lumber’). In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (Hale v. Southern California IPA Medical Group, Inc. (2001) 86 Cal.App.4th 919, 927 (“Hale”).) The Court has granted review of two issues in the underlying matter: 1) Does Labor Code section 1194 apply to a cause of action alleging meal and rest period violations (Lab. Code, § 226.7) or may attorney’s fees be awarded under Labor Code section 218.5; and 2) Is [this Court’s] analysis affected by whether the claims for meal and rest periods are brought alone or are accompanied by claims for minimum wage and overtime. As evidenced by the question itself, resolution of the first issue requires an interpretation of Labor Code sections 218.5, 226.7 and 1194. In addition, resolution of the second issue is dependent uponinterpreting the term “action” within Section 218.5. The legislative histories of the respective sections are relevant to their interpretation. (Big Creek Lumber, supra, 38 Cal.4"at p. 1153.) In addition, federal labor law provides guidanceto the interpretation of state law employing parallel language. (Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 658 (‘Farrell’’).) Accordingly, provisions of the FLSA employing the same language as the 7 a 3 aforementioned Labor Code sections are also relevant. (/bid.) Finally, Evidence Code section 451 requires this Court take judicial notice of any relevant, public statutory laws or constitutional provisions of California and the United States. (Evid. Code, § 451, subd. (a).) In addition to its text and legislative history, the natural and customary use of terms employed within a statute is relevant to said statute’s interpretation. (Ziernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 218-219 (“Tiernan”.) Evidence Code section 452, subdivision (h) empowers a court to take judicial notice of the existence of publications and the contents therein because said existenceis not reasonably subject to dispute. (Seelig v. Infinity Broadcasting Corp., et al. (2002) 97 Cal.App.4" 798, 808, fn 5 (“‘Seelig’’); see also Evid. Code, § 452, sbud. (h).) Accordingly, the existence of articles published at the time of a statute’s enactment, and how such articles exemplify the manner in which certain terms were customarily employed at said time, are subject to judicial notice for the purpose of determining the natural and customary import of those terms. In conclusion, the legal authority for this Court to grant judicial notice of each of the above-listed documentsis as follows: Exhibit A: Introduced version of Assembly Bill 633 (1999), February 19, 1999 Legislative history, including previous drafts of a statute, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Cynthia D. v. Superior Court (1993) 5 Cal.4" 242, 250, fn. 7 (“Cynthia D.”) [previous drafts in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit A is a bill including a e s us previous draft of Section 226.7, the Court should take judicial notice ofthe document. ExhibitB: Amended version of Assembly Bill 1652 (1999), September 3, 1999 Legislative history, including previous drafts of a statute, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Cynthia D., supra, 5 Cal.4" at p. 250, fn. 7 [previous drafts in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit B is a bill including a previous draft of Section 226.7, the Court should take judicial notice of the document. Exhibit C: Amended version of Assembly Bill 1652 (1999) September 8, 1999 Legislative history, including previous drafts of a statute, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Cynthia D., supra, 5 Cal.4"at p. 250, fn. 7 [previous drafts in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactmentof a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit C is a bill including a previous draft of Section 226.7, the Court should take judicial notice of the document. Exhibit D: Introduced version of Assembly Bill 2509 (2000), February 24, 2000 Legislative history, including previous drafts of a statute, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Cynthia D., supra, 5 Cal.4" at p. 250, fn. 7 [previous drafts in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials 9 v w underlying the enactment of a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit D is a bill including a previous draft of Section 226.7, the Court should take judicial notice of the document. ExhibitE: Assembly Committee on Labor and Employment bill report of Assembly Bill 2509 (2000), April 12, 2000 Legislative history, including legislative committee bill reports, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Martin v. Szeto (2004) 32 Cal.4th 445, 450 (‘Martin’) |legislative committee bill reports in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment ofa statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit E is a true and correct copy of a legislative committee report concerning Assembly Bill 2509 (2000), the Court should take judicial notice of the documentin this matter. Exhibit F: Amended version of Assembly Bill 2509 (2000), August 25, 2000 Legislative history, including previous drafts of a statute, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Cynthia D., supra, 5 Cal.4" at p. 250, fn. 7 [previous drafts in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit F is a bill including a previous draft of Section 226.7, the Court should take judicial notice of the document. Exhibit G: Statutes 2000, Chapter 876 [amendment of Section 218.5; enactment of Section 226.7 | Legislative history is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153.) Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant public 10 statutes of this State. (Evid. Code, § 451, subd. (a).) Whereas Exhibit G is a true and correct copy of a public statute amending Section 218.5 and enacting Section 226.7, the Court should take judicial notice of the documentin this matter. Exhibit H: Governor’s Chaptered Bill File for Assembly Bill 2509 (2000): Enrolled Bill Report from Department of Industrial Relations, September 13, 2000 Legislative history, including enrolled bill reports, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Elsner v. Uveges (2004) 34 Cal.4" 915, 934, fn. 19 (‘Elsner’) [enrolled bill reports in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment ofa statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit H is a true and correct copy of an enrolled bill report concerning Assembly Bill 2509 (2000), the Court should take judicial notice of the documentin this matter. Exhibit I: Senate Judiciary Committee bill report of Assembly Bill 2509 (2000), August 8, 2000 Legislative history, including legislative committee bill reports, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Martin, supra, 32 Cal.4th at p. 450 [legislative committee bill reports in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactmentof a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit I is a true and correct copy of a legislative committee report concerning Assembly Bill 2509 (2000), the Court should take judicial notice of the documentin this matter. Exhibit J: Statutes 1986, Chapter 1211 [enactment of Section 218.5] 11 € s Legislative history is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153.) Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant public statutes of this State. (Evid. Code, § 451, subd. (a).) Whereas Exhibit J is a true and correct copy of a public statute enacting the original version of Section 218.5, the Court should take judicial notice of the documentin this matter. Exhibit K: Senate Committee on Judiciary Analysis of Senate Bill 2570 (1986) Legislative history, including legislative committee bill reports, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Martin, supra, 32 Cal.4th at p. 450 [legislative committee bill reports in particular].) [In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit K is a true and correct copy of a legislative committee report concerning Senate Bill 2570 (1986), the Court should take judicial notice of the document in this matter. Exhibit L: Assembly Committee on Judiciary Analysis of Senate Bill 2570 (1986), July 8, 1986 Legislative history, including legislative committee bill reports, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Martin, supra, 32 Cal.4th at p. 450 [legislative committee bill reports in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit L is a true and correct copy of a legislative committee report concerning Senate Bill 2570 (1986), the Court should take judicial notice of the documentin this matter. 12 © ExhibitM: Senate Rules Committee Analysis of Senate Bill 2570 (1986), May 6, 1986 Legislative history, including legislative committee bill reports, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Martin, supra, 32 Cal.4th at p. 450 [legislative committee bill reports in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit M is a true and correct copy of a legislative committee report concerning Senate Bill 2570 (1986), the Court should take judicial notice of the documentin this matter. Exhibit N: Governor’s Chaptered Bill File for Senate Bill 2570 (1986): Enrolled Bill Report from Department of Industrial Relations, August 26, 1986 Legislative history, including enrolled bill reports, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Elsner, supra, 34 Cal.4" at p. 934, fn. 19 [enrolled bill reports in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit N is a true and correct copy of an enrolled bill report concerning Senate Bill 2570 (1986), the Court should take judicial notice of the documentin this matter. Exhibit O: CACI JuryInstruction No. 2701 (2011 edition) The natural and customary usage of a term employed within a statute is relevant to said statute’s interpretation. (Tiernan, supra, 33 Cal.3d at pp. 218-219.) Evidence Code section 452, subdivisions (b) and (c) provide that judicial notice may be taken of any “official act’ of the legislative, executive, and judicial departments of California. (Evid. Code, § 452, 13 & subds. (b),(c).) Whereas Exhibit O is a true and correct copy of an official act of the California Judicial Council, and exemplifies the natural and customary use of the term “minimum wage”also employed within Section 1194, the Court should take judicial notice of the documentin this matter. Exhibit P: Industrial Welfare Commission Publication MW-2007 (Official Notice of California Minimum Wage) The natural and customary usage of a term employed within a statute is relevant to said statute’s interpretation. (Tiernan, supra, 33 Cal.3d at pp. 218-219.) Evidence Codesection 452, subdivisions (b) and (c) provide that judicial notice may be taken of any “official act,” including regulations and legislative enactments, of the legislative, executive, and judicial departments of California. (Evid. Code, § 452, subds. (b),(c).) Whereas Exhibit P is a true and correct copy of an official act of the Industrial Welfare Commission, and is relevant to the natural and customary use of term “minimum wage” employed within Section 1194, the Court should take judicial notice of the documentin this matter. Exhibit Q: Statutes 1913, Chapter 324 [enactment of Section 1194) Legislative history is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153.) Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant public statutes of this State. (Evid. Code, § 451, subd. (a).) Whereas Exhibit Q is a true and correct copy of a public statute enacting the original version of Section 1194 (at that time an uncodified provision), the Court should take judicial notice of the documentin this matter. Exhibit R: California Constitution as Adopted May 7, 1879 Article I, Section 24 of the California Constitution as it read in 1913 set forth that any subject not embraced within an act’s title is void. (Cal. Const. art. I, § 24.) Evidence Code section 451, subdivision (a), requires 14 a & this Court to take judicial notice of relevant constitutional provisionsofthis State. (Evid. Code, § 451, subd. (a).) Whereas Exhibit R is a true and correct copy of a constitutional provision as it read at the time Section 1194 wasfirst enacted, the Court should take judicial notice of the document in this matter. Exhibit S: Publication by Arthur Norman Holcombe, “The effects of the legal minimum wage for women”(1917) The natural and customary usage of a term employed within a statute is relevant to said statute’s interpretation. (Tiernan, supra, 33 Cal.3d at pp. 218-219.) Evidence Code section 452, subdivision (h) empowers a court to take judicial notice of the existence of publications and the contents therein because said existence is not reasonably subject to dispute. (See/ig, supra, 97 Cal.App.4" at p. 808, fn 5.) Whereas Exhibit S is an article published in the same era Section 1194 wasfirst enacted, and exemplifies the natural and customary use of the term “legal minimum wage” during said era, the Court should take judicial notice of the existence of the document and the contents therein. Exhibit T: Publication by Consumers’ League of New Your State and Consumers’ League of the City of New York, “Women’s wages today: One reason for a_ legal minimum in New York State” (1920) The natural and customary usage of a term employed withina statute is relevant to said statute’s interpretation. (Tiernan, supra, 33 Cal.3d at pp. 218-219.) Evidence Code section 452, subdivision (h) empowers a court to take judicial notice of the existence of publications and the contents therein because said existence is not reasonably subject to dispute. (Seelig, supra, 97 Cal.App.4"at p. 808, fn 5.) Whereas Exhibit T is an article published in the same era Section 1194 wasfirst enacted, and exemplifies the natural and customary use of the term “legal minimum wage” during said era, the 15 a s Court should take judicial notice of the existence of the documentand the contents therein. Exhibit U: CACI Jury Instruction No. 2702 (2011 edition) The natural and customary usage of a term employed within a statute is relevant to said statute’s interpretation. (7.iernan, supra, 33 Cal.3d at pp. 218-219.) Evidence Code section 452, subdivisions (b) and (c) provide that judicial notice may be taken of any “official act” of the legislative, executive, and judicial departments of California. (Evid. Code, § 452, subds. (b),(c).) Whereas Exhibit U is a true and correct copy ofan official act of the California Judicial Council, and exemplifies the natural and customary use of the term “overtime” also employed within Section 1194, the Court should take judicial notice of the documentin this matter. Exhibit V: Statutes 1961, Chapter 408 [amendment of Section 1194) Legislative history is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153.) Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant public statutes of this State. (Evid. Code, § 451, subd. (a).) Whereas Exhibit V is a true and correct copy of a public statute amending Section 1194, the Court should take judicial notice of the documentin this matter. Exhibit W: Statutes 1936, Chapter 90 [codification of Section 1194 Legislative history is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153.) Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant public statutes of this State. (Evid. Code, § 451, subd. (a).) Whereas Exhibit W is a true and correct copy of a public statute codifying Section 1194, which 16 sets forth the powers of the Industrial Welfare Commission, the Court should take judicial notice of the documentin this matter. Exhibit X: Public Laws, 52 Statutes, Chapter 676 [enactment of FLSA] Federal labor law provides guidance to the interpretation of California labor law employing parallel language. (Farrell, supra, 41 Cal.3d at p. 658.) Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant public statutes of the United States. (Evid. Code, § 451, subd. (a).) Whereas Exhibit X is a true and correct copy of a public statute enacting federal labor law employing terms also used within Section 1194, the Court should take judicial notice of the documentin this matter. Exhibit Y: Public Laws, 63 Statutes, Chapter 352 [amendment of FLSA] Federal labor law provides guidance to the interpretation of California labor law employing parallel language. (Farrell, supra, 41 Cal.3d at p. 658.) Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant public statutes of the United States. (Evid. Code, § 451, subd. (a).) Whereas Exhibit Y is a true and correct copy of a public statute enacting federal labor law employing terms also used within Section 1194, the Court should take judicial notice of the documentin this matter. Exhibit Z: Statutes 1972, Chapter 1122 [amendment of Section 1194] Legislative history is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 CalAth at p. 1153.) Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant public statutes of this State. (Evid. Code, § 451, subd. (a).) Whereas Exhibit Z is 17 a s a true and correct copy of a public statute amending Section 1194, the Court should take judicial notice of the documentin this matter. Exhibit AA: Governor’s Chaptered Bill File for Assembly Bill 256 (1972): Enrolled Bill Report from Department of Finance, August 14, 1972 Legislative history, including enrolled bill reports, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Elsner, supra, 34 Cal.4" at p. 934, fn. 19 [enrolled bill reports in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit AA is a true and correct copy of an enrolled bill report concerning Assembly Bill 256 (1972), the Court should take judicial notice of the documentin this matter. Exhibit BB: Legislative Counsel’s Digest of Statutes 1972, Chapter 1122 [amendmentof Section 1194] Legislative history, including Legislative Counsel Digests, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 [legislative history in general]; Pacific Gas & Electric Co. v. Department of Water Resources (2003) 112 Cal.App.4th 477, 482-483 [Legislative Counsel’s Digests in particular]; People v. Allen (2001) 88 Cal.App.4th 986, 995 [same]; People v. Harper (2000) 82 Cal.App.4th 1413, 1418 [same].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactmentof a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit BB is a true and correct copy of the Legislative Counsel Digest for Statutes 1972, Chapter 1122, the Court should take judicial notice of the documentin this matter. 18 & Exhibit CC: McGann v. United Postal Service, Inc. (Feb. 24,2011 B221709) —Cal.App.4th (Published Opinion) McGann v. United Postal Service, Inc. (Feb. 24, 2011, B221709) ___ Cal.App.4th _ is a published decision which addressed the same questions under review in the instant matter. Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant judicial decisions of this State. (Evid. Code, § 451, subd. (a).) Whereas Exhibit CC is a true and correct copy of a published decision addressing the same issues under review, the Court should take judicial notice of the documentin this matter. Exhibit DD: Statutes 1972, Chapter 1321 [enactment of Labor Code section 227.3] Absent evidence of inconsistency by the Legislature, a word or phrase, or its derivatives, accorded a particular meaning in one part or portion of a code, should be accorded the same meaningin other parts or portions of the code. (California Teachers Assn. v. Governing Bd. ofRialto Unified School Dist. (1997) 14 Cal.4" 627, 641-643.) Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant public statutes of this State. (Evid. Code, § 451, subd. (a).) Whereas Exhibit DD is a true and correct copy of a public statute enacted prior to Section 226.7, located within the same Labor Code Article as Section 226.7, and employs the same term “wage” as Section 226.7, this statute is relevant to the statutory interpretation of the term “wage” within Section 226.7 and the Court should take judicial notice of the documentin this matter. Exhibit EE: Governor’s Chaptered Bill File for Senate Bill 548 (1961): Memo from Department of Industrial Relations to Governor’s Office Legislative history, including enrolled bill reports, is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153 19 a ) [legislative history in general]; Elsner, supra, 34 Cal.4" at p. 934, fn. 19 [enrolled bill reports in particular].) In an effort to discern legislative intent, this Court may take judicial notice of the various legislative materials underlying the enactment of a statute. (Hale, supra, 86 Cal.App.4th at p. 927.) Whereas Exhibit EE is a true and correct copy of an enrolled bill report concerning Senate Bill 548 (1961), which amended Section 1194, the Court should take judicial notice of the documentin this matter. Exhibit FF: Senate Bill 363 (1872) [signed and enacting first Code of Civil Procedure on March 11, 1872, including Section 22 which provides original codified definition of “‘action”’| Legislative history is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153.) Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant public statutes of this State. (Evid. Code, § 451, subd. (a).) Whereas Exhibit FF is a true and correct copy of a public statute enacting the definition of “action” within Code of Civil Procedure, section 22, the Court should take judicial notice of the documentin this matter. Exhibit GG: Statutes 1933, Chapter 742 [amendment of Code of Civil Procedure section 22| Legislative history is relevant to statutory interpretation. (Big Creek Lumber, supra, 38 Cal.4th at p. 1153.) Evidence Code section 451, subdivision (a), requires this Court to take judicial notice of relevant public statutes of this State. (Evid. Code, § 451, subd. (a).) Whereas Exhibit GG is a true and correct copy of a public statute amending the definition of “action” as set forth in Code of Civil Procedure section 22, the Court should take judicial notice of the document in this matter. /// 20 a y Conclusion For the reasons set forth above, this Court should grant judicial notice of each of the exhibits listed above. DATED: Mareh/ 2011. Respectfully submitted, REDIGER, McHUGH & OWENSBY, LLP Oe OHNSON A reys for Respondent, I OOS FIRE PROTECTION, INC. 21 a s DECLARATION OF JIMMIE E. JOHNSON IN SUPPORT OF RESPONDENT’S MOTION FOR JUDICIAL NOTICE I, JIMMIE E. JOHNSON,declare: l. I am an attorney admitted to practice in the State of California, and am one of the attorneys of record representing the Respondent, IMMOOS FIRE PROTECTION,INC., in this matter. 2. I make this declaration in support of the instant motion for judicial notice. 3. On or about November 24, 2009, I traveled to the California State Archives located at 1020 O Street, Sacramento, California 95814 (hereinafter “the Archives”). At the Archives, I reviewed the legislative history of Labor Code section 218.5 (“Section 218.5”). 4. The following documents are true and correct copies of the original documents I researched concerning Section 218.5: Exhibit G: Statutes 2000, Chapter 876 [amendment of Section 218.5; enactment of Section 226.7] Exhibit J: Statutes 1986, Chapter 1211 [enactment of Section 218.5] Exhibit K: Senate Committee on Judiciary bill report of Senate Bill 2570 (1986) Exhibit L: Assembly Committee on Judiciary bill report of Senate Bill 2570 (1986) Exhibit M: Senate Rules Committee bill report of Senate Bill 2570 (1986) Exhibit N: Governor’s Chaptered Bill File for Senate Bill 2570 (1986): Enrolled Bill Report from Department of Industrial Relations 7. At the Archives, on or about February 4, 2011, I reviewed the legislative history of Labor Codesection 1194. 22 8. The following documents are true and correct copies of the original documents I researched concerning Labor Code section 1194 (“Section 1 194°’): Exhibit Q: Statutes 1913, Chapter 324 [enactment of Section 1194] Exhibit R: California Constitution as adopted May 7, 1879 Exhibit V: Statutes 1961, Chapter 408 [amendment of Section 1194] Exhibit W: Statutes 1936, Chapter 90 [codification of Section 1194 and Labor Code section 1173] Exhibit Z: Statutes 1972, Chapter 1122 [amendment of Section 1194] Exhibit AA : Governor’s Chaptered Bill File for Assembly Bill 256 (1972): Enrolled Bill Report from Department of Finance 9. At the Archives, on or about February 24, 2011, I again reviewed the legislative history of Section 1194. . 10. The following document is a true and correct copy of the original document I researched concerning Labor Code section 1194 (“Section 1194”): Exhibit EE: Governor’s Chaptered Bill File for Senate Bill 548 (1961): Memo from Department of Industrial Relations to Governor’s Office 11. That same day, on or about February 24, 2011, I traveled to the Bernard E. Witkin State Law Library of California located at 900 N Street, Sacramento, California 95814 (hereinafter “the State Law Library”). At the State Law Library, I reviewedthe legislative history of Section 1194. 12. The following document is a true and correct copy of the original document I researched concerning Section 1194: 23 a Exhibit BB: Legislative Counsel’s Digest of Statutes 1972, Chapter 1122 [amendmentof Section 1194] 13. In researching Labor Code section 1194, I] did not discover any discussion or analysis within the legislative history of Assembly Bill 256 (1972) regarding an intent for the term “legal overtime compensation” (first included within Section 1194 by the enactment of said bill) to have a substantively different meaning than the term “overtime compensation” (which had been previously employed within the section.) In fact, I did not find any analysis or discussion within the legislative history of Assembly Bill 256 (1972) regarding the change in terminology. 14. On or about February 3, 2011, I reviewed the legislative history of the federal Fair Labor Standards Act (“FLSA”) employing a LexisNexis on-line database found at http://www .lexis.com. 15. The following documents are true and correct copies of the electronic documents | researched concerning the FLSA: Exhibit X: Public Laws, 52 Statutes, Chapter 676 [enactment of FLSA] Exhibit Y: Public Laws, 63 Statutes, Chapter 352 [amendment of FLSA] 16. At the Archives, on or about February 11, 2011, I reviewed the legislative history of Labor Codesection 226.7 (“Section 226.7”). 17. In addition to reviewing Statutes 2000, Chapter 876 [amendment of Section 218.5, enactment of Section 226.7] a second time, the following documents are true and correct copies of the original documents I researched concerning Section 226.7: Exhibit A: Introduced version of Assembly Bill 633 (1999) [first introduced version of Labor Codesection 226.7| 24 Exhibit B: Amended version of Assembly Bill 1652 (1999) [second introduced version of Labor Code section 226.7] ExhibitC: Amended version of Assembly Bill 1652 (1999) [removal of unilateral attorney’s fee provision from Labor Code section 226.7| Exhibit D: Introduced version of Assembly Bill 2509 (2000) [third introduced version of Labor Code section 226.7] Exhibit F: Amended version of Assembly Bill 2509 (2000) [removal of unilateral attorney’s fee provision from Labor Codesection 226.7] 18. On or about February 4, 2011, I reviewed articles published in the early twentieth century concerning the nationwide movement towards minimum wage laws employing a Harvard Library on-line database found at http://pds.lib.-harvard.edu. 19. The following documents are true and correct copies of the electronic documents I researched concerning the FLSA: Exhibit S: Publication by Arthur Norman Holcombe,“The effects of the legal minimum wage for women” (1917) [located at http://pds.lib-harvard.edu/pds/view/3928820] Exhibit T: Publication by Consumers’ League of New YourState and Consumers’ League of the City of New York, “Women’s wages today: One reason for a legal minimum in New York State” (1920) [located at http://pds.lib.harvard.edu/pds/view/2575320] 20. At the Archives, on or about February 24, 2011, I again reviewed the legislative history of Section 226.7. 21. The following documents are true and correct copies of the original documents I researched concerning Section 226.7: Exhibit E: Assembly Committee on Labor and Employmentbill report of Assembly Bill 2509 (2000) 25 Exhibit H: Governor’s Chaptered Bill File for Assembly Bill 2509 (2000): Enrolled Bill Report from Department of Industrial Relations, September 13, 2000 ExhibitI: Senate Judiciary Committee bill report of Assembly Bill 2509 (2000) 22. On that same day at the Archives, on or about February 24, 2011, I also reviewed the legislative history of Labor Code section 227.3. 23. The following document is a true and correct copy of the original document I researched concerning Labor Codesection 227.3: Exhibit DD: Statutes 1972, Chapter 1321 [enactment of Labor Code section 227.3] 24. On that same day at the Archives, on or about February 24, 2011, I also reviewed the legislative history of Code of Civil Procedure section 22. 25. The following documents are true and correct copies of the original documents [ researched concerning Code of Civil Procedure section 22: Exhibit FF: Senate Bill 363 (1872) [signed and enacting first Code of Civil Procedure on March 11, 1872, including Section 22 which provides original codified definition of “action’’] Exhibit GG: Statutes 1933, Chapter 742 [amendment of Code of Civil Procedure section 22] 26. Onor about March 1, 2011, I reviewed the recently published case McGann v. United Postal Service, Inc. (Feb. 24, 2011, B221709) __ Cal.App.4th | employing a LexisNexis on-line database found at http://www.lexis.com. 27. The following document is a true and correct copy of the electronic documentI researched concerning the newcase: 26 » Exhibit CC: McGann v. United Postal Service, Inc. (Feb. 24, 2011, B221709) — Cal.App.4th _ 28. On or about March 18, 2011, I reviewed CACI Jury Instructions published by the California Judicial Council employing the California Courts’ official website at http://www.courtinfo.ca.gov/jury/civiljuryinstructions/juryinst.htm. 29. The following documents are true and correct copies of the electronic documents I researched concerning the CACI Jury Instructions: Exhibit O: CACTIJury Instruction No. 2701 (2011 edition) Exhibit U: CACI Jury Instruction No. 2702 (2011 edition) 30. On that same day, on or about March 18, 2011, I reviewed Industrial Welfare Commission publications employing the Industrial Welfare Commission’s official website at http://www.dir.ca.gov/iwc/minwage2007.pdf. 31. The following document is a true and correct copy of the electronic document I researched concerning the Industrial Welfare Commission’s publications: Exhibit P: Industrial Welfare Commission Publication MW-2007 (Official Notice of California Minimum Wage) I declare under penalty of perjury that the foregoing is true and correct and that I could competently testify thereto if called upon to do so. Executed this jo day of March 2011, at Sacramento, California. yePPUNSON 27 a s a [PROPOSED ORDER] Good cause appearing, therefore, IT IS HEREBY ORDERED that the Supreme Court will take judicial notice of the following documents: Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Exhibit G Exhibit H: Exhibit I: Exhibit J: Introduced version of Assembly Bill 633 (1999), February 19, 1999 [first introduced version of Labor Code section 226.7] Amended version of Assembly Bill 1652 (1999), September 3, 1999 [second introduced version of Labor Code section 226.7] Amended version of Assembly Bill 1652 (1999), September 8, 1999 [removal of unilateral attorney’s fee provision from Labor Code section 226.7] Introduced version of Assembly Bill 2509 (2000), February 24, 2000 [third introduced version of Labor Code section 226.7] Assembly Committee on Labor and Employmentbill report of Assembly Bill 2509 (2000), April 12, 2000 Amended version of Assembly Bill 2509 (2000), August 25, 2000 [removal of unilateral attorney’s fee provision from Labor Code section 226.7] Statutes 2000, Chapter 876 [amendment of Section 218.5; enactment of Section 226.7] Governor’s Chaptered Bill File for Assembly Bill 2509 (2000): Enrolled Bill Report from Department of Industrial Relations, September 13, 2000 Senate Judiciary Committee bill report of Assembly Bill 2509 (2000), August 8, 2000 Statutes 1986, Chapter 1211 [enactment of Section 218.5] 28 “ Exhibit K: Exhibit L: Exhibit M: Exhibit N: Exhibit O: Exhibit P: Exhibit Q: Exhibit R: Exhibit S: Exhibit T: Exhibit U: Exhibit V: Exhibit W: Exhibit X: Senate Committee on Judiciary bill report of Senate Bill 2570 (1986), 1986 Assembly Committee on Judiciary bill report of Senate Bill 2570 (1986), July 8, 1986 Senate Rules Committee bill report of Senate Bill 2570 (1986), May 6, 1986 Governor’s Chaptered Bill File for Senate Bill 2570 (1986): Enrolled Bill Report from Department of Industrial Relations, August 26, 1986 CACIJury Instruction No. 2701 (2011 edition) Industrial Welfare Commission Publication MW-2007 (Official Notice of California Minimum Wage) Statutes 1913, Chapter 324 [enactment of Section 1194] California Constitution as adopted May 7, 1879 Publication by Arthur Norman Holcombe, “The effects of the legal minimum wage for women”(1917) Publication by Consumers’ League of New YorkState and Consumers’ League of the City of New York, “Women’s wages today: One reason for a legal minimum in New York State” (1920) CACIJury Instruction No. 2702 (2011 edition) Statutes 1961, Chapter 408 [amendment of Section 1194] Statutes 1936, Chapter 90 [codification of Section 1194] Public Laws, 52 Statute, Chapter 676 [enactment of FLSA] 29 Exhibit Y: ExhibitZ: Exhibit AA: Exhibit BB: Exhibit CC: Exhibit DD: Exhibit EE: Exhibit FF: Exhibit GG: Dated: Public Laws, 63 Statute, Chapter 352 [amendment of FLSA] Statutes 1972, Chapter 1122 [amendment of Section 1194] Governor’s Chaptered Bill File for Assembly Bill 256 (1972): Enrolled Bill Report from Department of Finance, August 14, 1972 Legislative Counsel’s Digest of Statutes 1972, Chapter 1122 [amendmentof Section 1194] McGann v. United Postal Service, Inc. (Feb. 24, 2011, B221709) — Cal.App.4th _ (Published Opinion) Statutes 1972, Chapter 1321 [enactment of Labor Code section 227.3] Governor’s Chaptered Bill File for Senate Bill 548 (1961): Memo from Department of Industrial Relations to Governor’s Office, May 11, 1961.00... Senate Bill 363 (1872) [signed and enacting first Code of Civil Procedure on March 11, 1872, including Section 22 which provides original codified definition of “action”] Statutes 1933, Chapter 742 [amendment of Code of Civil Procedure section 22] The Honorable Chief Justice or Associate Justice of the California Supreme Court 30 a CERTIFICATE OF SERVICE I am a citizen of the United States of America and am employedin the County of Sacramento, State of California. I am over the age of eighteen years and not a party to the within action. My business addressis 555 Capitol Mall, Suite 1240, Sacramento, California 95814. On March 18, 2011, I served the within RESPONDENT’S MOTION FOR JUDICIAL NOTICE IN SUPPORT OF ANSWER BRIEF ON THE MERITS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF JIMMIE E. JOHNSON IN SUPPORT THEREOF; PROPOSED ORDERin Anthony Kirby et al. v. Immoos Fire Protection, Inc; California Supreme Court Case Number $185827 [Third Appellate District Court of Appeal Case Number C062306] by placing a true copy thereof enclosed in a sealed envelope, addressed as follows: Ellyn Moscowitz, Esq. Attorneys for Plaintiffs and Jennifer Lai, Esq. Appellants, ANTHONY Law Offices of Ellyn Moscowitz, P.C. KIRBY and RICK LEECH,JR. 1629 Telegraph Avenue, Fourth Floor Oakland, CA 94612 Scot D. Bernstein, Esq. Attorneys for Plaintiffs and LawOffices of Scot D. Bernstein Appellants, ANTHONY 101 Parkshore Drive, Suite 100 KIRBY and RICK LEECH,JR. Folsom, CA 95630 Clerk Sacramento County Superior Court 720 Ninth Street Sacramento, CA 95814 Appellate Coordinator Office of the Attorney General 300 S. Spring Street Los Angeles, CA 90013 Clerk Third Appellate District Court of Appeal 621 Capitol Mall, 10" Floor Sacramento, CA 95814 ® XXXX by placing a true copy thereof in a Federal Express envelope/box for overnight delivery in the receptacle located at 555 Capitol Mall, Sacramento, California 95814. I declare under penalty of perjury that the foregoing is true and correct. Executed on this 18" day of March 2011, at Sacramento, California. @