McWILLIAMS v. CITY OF LONG BEACHAppellant’s MotionCal.October 29, 2012$202037 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA JOHN W. McWILLIAMS,on behalf of himself SUPREME COURT and all others similarly situated, E | L E D Plaintiffand Appellant, , VS. OCT 29 2012 CITY OF LONG BEACH Defendant and Respondent. Frank A. McGuire Clerk After A Decision By The Court Of Appeal Second Appellate District, Division Three Case No. B200831 Deputy Superior Court for the County of Los Angeles Hon. Anthony J. Mohr, Judge Trial Court Case No. BC361469 NOTICE OF MOTION AND MOTION TO CONSIDER ADDITIONAL EVIDENCE WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP FRANCIS M. GREGOREK(144785) RACHELER. RICKERT (190634) MARISAC. LIVESAY(223247) gregorek@whafh.com rickert@whafh.com livesay@whafh.com 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 CHIMICLES & TIKELLIS LLP NICHOLASE. CHIMICLES(pro hacvice) TIMOTHY N. MATHEWS(pro hacvice) One Haverford Centre 361 West Lancaster Avenue Haverford, Pennsylvania 19041 Telephone: 610/642-8500 Facsimile: 610/649-3633 TOSTRUD LAW GROUP,P.C. JON TOSTRUD(199502) tostrud@yahoo.com 1901 Avenueofthe Stars, 2nd Floor Los Angeles, CA 90067 Telephone: 310/278-2600 Facsimile: 310/278-2640 CUNEO GILBERT & LADUCA, LLP SANDRA W. CUNEO (110388) 330 South Barrington Ave., #109 Los Angeles, CA 90049 Telephone: 424/832-3450 Facsimile: 424/832-3452 Attorneysfor Plaintiff/Appellant To the Honorable Chief Justice and Associate Justices of the Supreme Court: Please take notice that, pursuant to California Code of Civil Procedure section 909 and California Rules of Court, rule 8.252(c), Plaintiff/Appellant John W. McWilliams hereby submits this Notice of Motion and Motion to Consider Additional Evidence. Plaintiff moves this Court to consider, for the purposes of the Answer Brief on the Meritsfiled concurrently herewith, the following statement made by the City of Long Beach City Attorney, Robert E. Shannon, as reported in a Daily Journal article entitled, “Tax refund claims seen as major risk: Cities and counties face new taxpayerclass actions,” and dated April 13, 2012: “If people were left to the task of filing individual claims, they by and large wouldn’t bother.” A true and correct copy of the article is Exhibit A to the Declaration of Rachele R. Rickert attached hereto. The statement qualifies as an exception to the hearsay rule, and this Court may admit it into evidence. This motion is based upon the attached Memorandum of Points and Authorities, the Declaration of Rachele R. Rickert, and the proposed order granting this motion, which fulfills the requirements of California Rules of Court, rule 8.252(c). DATED: October 26, 2012 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP FRANCIS M. GREGOREK RACHELER. RICKERT “Kaolutle (2 Letecf RACHELER. RICKERT 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 CHIMICLES & TIKELLIS LLP NICHOLASE. CHIMICLES TIMOTHY N. MATHEWS One Haverford Centre 361 West Lancaster Avenue Haverford, Pennsylvania 19041 Telephone: 610/642-8500 Facsimile: 610/649-3633 CUNEO GILBERT & LADUCA, LLP SANDRA W. CUNEO 330 South Barrington Avenue, #109 Los Angeles, CA 90049 Telephone: 424/832-3450 Facsimile: 424/832-3452 TOSTRUD LAW GROUP, PC JON TOSTRUD 1901 Avenue of the Stars, 2nd Floor Los Angeles, CA 90067 Telephone: 310/278-2600 Facsimile: 310/278-2640 Attorneysfor Plaintiff/Appellant MEMORANDUM OF POINTS AND AUTHORITIES I, INTRODUCTION On April 13, 2012, the Daily Journal published an article entitled, “Tax refund claims seen as major risk: Cities and counties face new taxpayer class actions.” In that article, City of Long Beach (the “City”) City Attorney Robert E. Shannon is reported as making the following statement: “If people were left to the task of filing individual claims, they by and large wouldn’t bother.” (Declaration of Rachele R. Rickert, Exhibit A.) Plaintiff quotes this statement in his Answer Brief on the Merits at p. 34. This statement constitutes an admission of a party opponent, and the Daily Journal reported the statement after the Court of Appeal issued its opinion on March 28, 2012. (See Second Appellate District, Division Three, unpublished opinion filed on March 28, 2012 [Case No. B200831] (“Opinion’”).) As further set forth below, Mr. Shannon’s statement qualifies as an exception to the hearsay rule, and this Court may admit it into evidence pursuant to California Rules of Court, rule 8.252(c) and California Code of Civil Procedure section 909. This motion is timely made, the evidenceis a discrete factual statement that supports affirmance of the Court of Appeal Opinion, and the statement is relevant to the City’s motivation for opposing the filing of class claims and the potential impact of a bar on class claims as advocated bythe City in its appeal before this Court. II. CONSIDERATION OF ADDITIONAL EVIDENCE IS APPROPRIATE A. General Principles For Consideration Of Additional Evidence On Appeal California Rules of Court, rule 8.252(c) providesthat“[a] party may movethat the reviewing court take evidence.” Pursuant to California Code of Civil Procedure, section 909,this Court “may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal....” (Cal. Code Civ. Proc. § 909. See also Hasso v. Hasso (2007) 148 Cal.App.4th 329, 333 fn. 3 [55 Cal.Rptr.3d 667]; California Packing Corp. v. Transport Indemnity Co. (1969) 275 Cal.App.2d 363, 370 [80 Cal.Rptr. 150].) Moreover, “{t]his section shall be liberally construed....” (Cal. Code Civ. Proc. § 909.) While historically, appellate courts have been reluctant to take evidence because they are not equipped for it, “where the proffered evidence is wholly documentary, this objection is not so great.” (Crofoot Lumber, Inc. v. Lewis (1962) 210 Cal.App.2d 678, 681 [27 Cal-Rptr. 443] (Crofoot).) Moreover, the ability to consider additional evidence is favored where it supplies factual information supporting affirmance of the lower court’s opinion. (See Guardianship of Marino (1973) 30 Cal.App.3d 952, 961 [106 Cal.Rptr. 655]; Golden West Baseball Co. v. City of Anaheim, 25 Cal.App.4th 11, 42 [31 Cal.Rptr.2d 378].) B. The Statement In The Daily Journal Article Constitutes An Admission Of A Party And Therefore Is Excepted From The Hearsay Rule While ordinarily statements contained within a newsarticle would be considered inadmissible hearsay, here the proffered statementfalls into the exception provided by California Evidence Code section 1220: Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was madein his individual or representative capacity. (Cal. Evid. Code § 1220; see also Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1150 (119 Cal.Rptr.2d 131].) In addition, “it is well settled that no foundation as to time, place or persons present need belaid before admissions maybe introduced.” (Borror v. Dept. ofInvestment, Div. ofReal Estate (1971) 15 Cal.App.3d 531, 547 [92 Cal.Rptr. 525].) C. The Court Should Consider The Statement In The Daily Journal Article As Additional Evidence On This Appeal Similar to the facts in Crofoot, supra, 210 Cal.App.2d at p. 681, Plaintiff is requesting the Court admit a single documentinto evidencethat contains one statement by a party, specifically a one sentence statement by the City of Long Beach City Attorney, Robert E. Shannon, admitting that the City understandsthat if class claims are barred in these telephone tax refund actions, people would fail to pursue their claims, however valid. (See Exhibit A.) Admitting such evidence does not require this Court to resolve factual issues in dispute, which would more properly be determined by the trial court. (Compare De Angeles v. Roos Bros., Inc. (1966) 244 Cal.App.2d 434, 443 [52 Cal.Rptr. 783].) Moreover, the statement is relevant as a party admission regarding the City’s motivation for opposing the filing of class claims and the impact of a class action bar in this tax refund case. The statement therefore provides factual information that supports affirmance of the Court of Appeal’s decision upholding the ability of taxpayersto file class claims in tax refund actions. (See Opinion at pp. 2, 12.) Finally, given the fact that the date of publication, April 13, 2012, wasafter both the trial and appellate court rulingsin this case, this is not a matter that should have been, but wasnot, presented to thetrial court forits consideration in the first instance. (Compare In re L.B. (2003) 110 Cal.App.4th 1420, 1423, fn. 1 [3 Cal.Rptr.3d 16] [denying request for consideration of evidence that existed but was not presented at time of the lower court hearing]; Replogle v. Ray (1941) 48 Cal.App.2d 291, 311 [119 P.2d 980] [denying request for consideration of evidence based on undue delay].) HiIl. CONCLUSION For the reasons set forth above, Mr. Shannon’s statement is discrete additional evidence that is timely presented and relevant to the arguments on appeal, and such evidence falls within an exception to the hearsay rule. Therefore, Plaintiff respectfully submits that this Court should, after expiration of opposing counsel’s opportunity to respond under California Rules of Court, rule 8.54(a)(3), grant Plaintiff's motion for consideration of the above-referenced statement contained in the Daily Journalarticle, attached to the Declaration of Rachele R. Rickert as Exhibit A. DATED: October 26, 2012 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP FRANCIS M. GREGOREK RACHELER. RICKERT RACHELER. RICKERT 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 CHIMICLES & TIKELLIS LLP NICHOLASE. CHIMICLES TIMOTHY N. MATHEWS One Haverford Centre 361 West Lancaster Avenue Haverford, Pennsylvania 19041 Telephone: 610/642-8500 Facsimile: 610/649-3633 CUNEO GILBERT & LADUCA, LLP SANDRA W. CUNEO 330 South Barrington Avenue, #109 Los Angeles, CA 90049 Telephone: 424/832-3450 Facsimile: 424/832-3452 TOSTRUD LAW GROUP,PC JON TOSTRUD 1901 Avenueof the Stars, 2nd Floor Los Angeles, CA 90067 Telephone: 310/278-2600 Facsimile: 310/278-2640 Attorneysfor Plaintiff/Appellant DECLARATION OF COUNSEL [CRC 8.54(a)(2)] I, Rachele R. Rickert, declare as follows: 1. I am an attorney in good standing and licensed to practice before the Courts of this state. I am counsel of record for Plaintiff John W. McWilliams. 2. Attached hereto as Exhibit A is a true and correct copy of the article entitled, “Tax refund claims seen as major risk: Cities and counties face new taxpayerclass actions,” by Ben Adlin, as published in the Daily Journal on April 13, 2012. I declare under penalty of perjury of the laws of the State of California that the foregoingis true and correct. Executed onthis 26th day of October 2012. RACHELE R. RICKERT [PROPOSED] ORDER GRANTING MOTION FOR CONSIDERATION OF ADDITIONAL EVIDENCE For the reasons provided in Plaintiff’s Motion for Consideration of Additional Evidence (the “Motion’”), this Court hereby grants the Motion, specifically the following statement made by the City of Long Beach City Attorney, Robert E. Shannon, as reported in the Daily Journal article dated April 13, 2012, attached as Exhibit A to the Declaration of Rachele R. Rickert: “If people were left to the task of filing individual claims, they by and large wouldn’t bother.” As of the date of signing this Order, the Court will take this evidence into consideration pursuant to California Evidence Code section 1220 and California Code of Civil Procedure section 909 and in compliance with California Rules of Court, rule 8.252(c)(2). The Court hereby admits this statement into evidence without a hearing. DATED: CHIEF JUSTICE EXHIBIT A Daily Journal ~ California's Largest Legal News Provider 4/13/12 11:00 AM e DailyJournal Classifieds/Jobs/Office Space : Experts/Services : CLE : Search : Logout MONDAY TUESDAY WEDNESDAY THURSDAY TODAY Previous Next Bookmark Reprints This is (he property of tne Daily Journal Corporation andfully protected by copyright. Ihis made available only to Daly Journal sub personal or collaborative pp. «and may not be distributed duced, modified, sto trar ce without writ eck “Raprint’ to order pregeniation-ready copies to distribute to cients or usa in commercial marketing materiais ur jor permission fa post on webaie, Tax refund claims seen as majorrisk Cities and countiesface new taxpayerclass actions. By Ben Adlin A relatively obscureclass standing decision outofthe state Supreme Court last summercould wreak havocon local governmentfinances and theservices they fund. Thehigh court opinion in Ardonv. City ofLosAngeles established that understate law,taxpayers can seek tax refunds from municipalities on behalf of an entireclass. Previously, most read the GovernmentCodeto allow onlyindividual claims. Claimsagainst local governments are an administrative remedy that taxpayers must complete beforefiling suit. "To permit a class claim in this area has a tremendousfinancial impact." - Robert E. Shannon The decision now threatenscities and counties with expensiveclass actions at a time when municipalities are already dealing with weak bottom lines. By allowing individuals to file class claims on behalf of others, thousands of taxpayers can now clear that procedural hurdle with thefiling of a single claim. Costs to cities and counties could be huge. Los Angeles City Administrative Officer Miguel A. Santana said damagesin the Ardoncasecould be as high as $750 million - morethan three timesthe city's $220 million projected shortfall for the comingfiscal year. “Wecan't even borrow ourwayoutofit without having a huge financial burden that takes out of other public services,” Santanasaid. "We're talking about an annual paymentas high as $100 million a year." Despite potentially dizzyingliabilities, many municipal lawyersinitially read the July decision as a narrow one.Theypointedto a footnote that suggested local governments mightbe able to shield themselves through local ordinances expressly barringclass claims. Butlast month, an appellate court decision cast doubt on whethersuch prohibitions offer any protection. The 2nd District Court of Appeal, Division 3, ruled invalid the city of Long Beach's provision againstclass claims. The unpublished decision isn't binding precedent, butit nevertheless has city attorneys worried. McWilliamsv. City ofLong Beach, B200831. "To permita class claim in this area has a tremendous financial impact," said City Attorney Robert E. Shannon."If people wereleft to the task offiling individual claims, they by and large wouldn't bother.” Long Beach on Wednesdayaskedthe appellate court to hear the case again. But courts usually decline such requests, observers said. Shannonsaid he intends to keep fighting the decision, pledgingto petition the state SupremeCourt if necessary. i http://www.dailyjournal.com/subscriber/submain.cfm#section=DJSto...12%26shNewsType%3DNews%26NewsId%3D92 1794%26sdivid%3DmainContent1 Feedback | FAQ NEWS RULINGS VERDICTS Friday, April 13, 2012 Labor/Employment Employerliability for rest breaks clarified by high court The state Supreme Court issued a ruling Thursday providing long-soughtclarity to employers on how they should structure breaks for hourly workers in California. Energy Law BrightSourcecalls off its IPO In the midstofa struggling market for solar companies, Oakland-basedsolar project developer BrightSource abruptly reversed courseonits long- awaited IPO, announcingit would notgo forward as planned. Solo and Small Firms The Busch Firm The BuschFirm's practice includes representing religious organizations, many of which its founder created, U.S. Court ofAppeals for the 9th Circuit gth circuit says ban on political ads for public broadcastis unconstitutional A longstanding federal ban on political ads on public radio andTV stationsis an unconstitutional restriction of free speech, a divided oth U.S.Circuit Court ofAppeals panel held Thursday. Large Firms Another Dewey departure Dewey & LeBoeuf sustained another defection from its Los Angeles office Thursday, this time a corporate mid-level partner jumpingto the regional California shop Stradling Yocca Carlson & Rauth, P.C. Alternative Dispute Resolution Jeffrey M. Mandell ADRneutral brings more than two decades of experiencein negotiating thousands ofdeals for high-flying entertainment and mediaclients. Entertainment & Sports MPAA reorganizeslegal staff Six monthsafter takingthe reins, new entertainmenttrade group VP Henry Hoberman has restructured his legal team in Los Angeles and Washington,D.C. Page 1 of 3 Daily Journal - California's Largest Legal News Provider “If we don't get review on this case, then someoneelse will be the pinata on that issue," said attorney Michael G. Colantuono, who represents Long Beachinthe case. Shannonsaid the city hasn't yet been able to quantify its liability in the case, but he said the suit targets roughly $48 million in telephoneuserstax collected between 2005 and 2008.Plaintiffs allege the someofthat tax was levied on Internet service, which underfederal law is supposedto be tax-free. Class-action lawyers havefiled similar suits against Los Angeles County and thecity of ChulaVista. Jon A. Tostrud,oneofthe attorneys representingplaintiffs in Long Beach and Los Angeles city and county, declined to commentabout the cases. He referred questions to the cases’ lead counsel at Wolf Haldenstein Adler Freeman & Herz LLP, where attorneys didn't respond to requests for comment. Some municipal lawyers said tracking down information aboutclass claims can be onerous- or worse. ‘ "It's not possible," said San Francisco Deputy City Attorney Peter J. Keith. "If someone comesin and[files a claim on behalf of] every person whostayedin a hotelin San Francisco during these dates, we just don't have that information." Certain local taxes, such as those on telephoneservice, hotel visits and public parking lots, are collected by businesses and then remitted to municipalities. Keith said it's difficult to impossible to obtain and process a class claim, which can include numerous unidentified taxpayers, within the 45-day deadlinesetout by state law. Coluntuono,whoalso represents thecity and county of Los Angeles, said he worries the availability of a newtool for class actions will "attract a consortium of the most talented, smart [plaintiffs'] class-action lawyers" around. "This is totally new," he said, "and we're brushing up our Rolodexesto identify competent class defense counselto assist us.” RELATED ARTICLES Path cleared for class tax claims August 8, 2011 The state Supreme Court makesit easier for taxpayers to challenge local tax impositions. By Stanley S. Taylor of Nossaman LLP Do ordinancesshield cities from class claims? Angust 4, 2011 A lawsuit pending againstthe city of Chula Vista hinges on whether municipalities can shield themselves from class claims by expressly barring them in local statutes. RELATED RULINGS Ardonv. City ofLos Angeles September11, 2009 Previous Next http://www.dailyjournal.com/subscriber/submain.cfm#section=DJSto... 12%26shNewsType%3 DNews%26Newsld%3D921794%26sdivid%3DmainContent1 4/13/12 11:00 AM Corporate Former Apple IP counseljoins startup The mystery over what Apple Inc.'s longtime intellectual property counsel was up to when he left the company last summeris solved. Tax Stars need tax help, too For Hollywood's biggest stars, tax and estate planningis a year-round responsibility - one that many ofthem simply couldn't handle without the help of specialized lawyers. Investments Oaktree IPO offto a weak start Oaktree Capital Group LLC , the largest private equity firm in California, droppedinits first day of trading after raising $380.2 million in a downsized initial public offering. Tax Amazon.com readiesfor online sales tax By cutting a deal, Amazon and lawmakersleft the broader tax law question unresolved and madethe already convoluted tax system that much more complex. 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A collection of essays exploring the choices that women face whentrying to balance the demandsof Page 2 of 3 Daily Journal - California's Largest Legal News Provider : 4/13/12 11:00 AM - work and family. By Bernie D. Jones Tax Tax refundclaims seen as majorrisk A relatively obscure class standing decision out of the state Supreme Court last summer could wreak havoc on local governmentfinances and the services they fund. “XRLA870 LOS ANGELES KTIE 590 SANBERNARDINO. KABG790LOS ANGELES KTKZ 1380SACRAMENTO KCBQ1170 SANDIEGO Dee Estate tax March Madness: taxpayers 3, IRS o : i e Recent decesions provide hopefor taxpayers’ . Listen to the ability to prevail in U.S. Tax Court. By Bruce I losted Oy: | Finest Legal Minds Givner and Owen Kayeof Givner & Kaye PC THOMAS V. | in California 7. } ; GIRARDI Talk about the Law Letter to the Editor / Unsinking Mr. Kingsley's Titanic : : . Rebuttingtheclaim thatclass action lawsuits are thelifeboats of society. By JeffScott of Greenberg Traurig Judicial Profile Cory J. Woodward Superior Court Judge Kern County (Bakersfield) Tax Tax planners say uncertainty abounds in 2012 Tax attorneys in California who advise upper middle-class and wealthy clientele generally are professionals whoprize certainty - something they say is in short supply this year with federal tax cuts set to expire in January. HOME : MOBILESITE : CLASSIFIEDS : EXPERTS/SERVICES : CLE : DIRECTORIES : SEARCH : LOGOUT http:/ /www.dailyjournal.com/subscriber/submain.cfm#section=DJSto...12%26shNewsType%3 DNews%2z 6News!d%3D921794%26sdivld%3DmainContent1 Page 3 of 3 DECLARATION OF SERVICE I, Maureen Longdo,the undersigned, declare: 1. That declarant is and was, at all times herein mentioned, a citizen of the United States and a resident of the County of San Diego, over the age of 18 years, and not a party to or interested in the within action;that declarant’s business address is 750 B Street, Suite 2770, San Diego, California 92101. 2. That on October 26, 2012, declarant served the NOTICE OF MOTION AND MOTION TO CONSIDER ADDITIONAL EVIDENCE via Federal Express Overnight Delivery in a sealed envelope with postage thereon fully prepaid and addressed to the parties listed on the attached Service List and the Supreme Court ofthe State of California. 3. Thatthere is regular communication betweenthe parties. I declare under penalty of perjury that the foregoing is true and correct. Executed this 26th day of October 2012, at San Diego, California. MAUREEN LONGDO CITY OF LONG BEACH:19146.MOT 10 CITY OF LONG BEACH Service List -- January 8, 2007 Page 1 COUNSEL FOR PLAINTIFFS Francis M. Gregorek Rachele R. Rickert WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 750 B Street, Suite 2770 San Diego, CA 92101 619/239-4599 619/234-4599 (fax) Nicholas E. Chimicles Timothy N. Mathews Benjamin F. Johns CHIMICLES & TIKELLIS LLP One Haverford Centre 361 West Lancaster Avenue Haverford, Pennsylvania 19041 610/642-8500 610/649-3633 (fax) timothymathews@chimicles.com Jonathan W. Cuneo William Anderson CUNEO GILBERT & LADUCA, LLP 507 C Street, NE Washington, DC 20002 202/789-3960 202/789-1813 (fax) wanderson@cuneolaw.com Sandra W. Cuneo CUNEO GILBERT & LADUCA, LLP 330 South Barrington Avenue, #109 Los Angeles, CA 90049 424/832-3450 424/832-3452 scuneo@cuneolaw.com Jon Tostrud TOSTRUD LAW GROUP,P.C. 1901 Avenueofthe Stars, 2nd Floor Los Angeles, CA 90067 310/278-2600 310/278-2640 jtostrud@tostrudlaw.com COUNSEL FOR DEFENDANTS Robert E. Shannon Belinda R. Mayes CITY ATTORNEY OFFICE 333 West Ocean Blvd., 11th Floor Long Beach, CA 90802-4664 562/570-2200 562/436-1579 (fax) Michael G. Colantuono Sandra J. Levin Holly O. Whatley COLANTUONO & LEVIN,P.C. One California Plaza 300 South Grand Avenue, 27th Floor Los Angeles, CA 90071 213/542-5700 213/542-5710 (fax) mcolantuono@cllaw.us slevin@cllaw.us hwhatley@cllaw.us COURTESY COPIES Hon. Anthony J. Mohr COUNTY OF LOS ANGELES SUPERIOR COURT OF CALIFORNIA 600 South Commonwealth Ave., Room 314 Los Angeles, CA 90005 Clerk of the Court COURT OF APPEAL STATE OF CALIFORNIA SECOND APPELLATE DISTRICT 300 South Spring Street, Second Floor, North Tower Los Angeles, CA 90013 213/830-7000
