NEIGHBORS FOR SMART RAIL v. EXPOSITION METRO LINE CONSTRUCTION AUTHORITY (LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION)

Respondents’ Opposition to Request for Judicial Notice in Support of Appellant’s Motion

Cal.October 22, 2012

CASE NO.S202828 a IN THE SUPREME COURT TLE. STATE OF CALIFORNIA : on ‘.) a . NEIGHBORSFOR SMARTRAIL, OCT 9.9 2012 4) A Non-Profit California Corporation, Petitioner and Appellant, Frank A. McGuire Clerk KDS ») VS. Deputy EXPOSITION METRO LINE CONSTRUCTION AUTHORITY; EXPOSITION METRO LINE CONSTRUCTION AUTHORITY BOARD, Respondents, LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY; LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY BOARD, Real Parties in Interest and Respondents. SecondDistrict of the Court of Appeal, Division 8 (No. B232655) Certified for Partial Publication Affirming a Judgment and Order by the Superior Court of the State of California for the County of Los Angeles (No. BS125233) Honorable Thomas J. McKnew,Jr. OPPOSITION OF EXPOSITION METRO LINE CONSTRUCTION AUTHORITY AND LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR STAY FILED BY PETITIONER AND APPELLANT NOSSAMAN LLP NOSSAMAN LLP Robert D. Thornton (SBN 72934) Lloyd W. Pellman (SBN 54295) rthornton@nossaman.com lpellman@nossaman.com John J. Flynn UI (SBN 76419) 777 South FigueroaStreet, 34th Floor Robert C. Horton (SBN 235187) Los Angeles, CA 90017 18101 Von Karman Avenue, Suite 1800 Telephone: 213.612.7800 Irvine, CA 92612 Facsimile: 213.612.7801 Telephone: 949.833.7800 Facsimile: 949.833.7878 Attorneysfor Respondents EXPOSITION METRO LINE CONSTRUCTION AUTHORITY; EXPOSITION METRO LINE CONSTRUCTION AUTHORITY BOARD John F. Krattli (SBN 82149) Tiffany K. Wright (SBN 210060) County Counsel Counsel of Record Ronald W. Stamm (SBN 91919) RemyMoose Manley, LLP Principal Deputy County Counsel 455 Capitol Mall, Suite 210 Office of the Los Angeles County Counsel Sacramento, CA 95814 Transportation Division Telephone: 916.443.2745 One Gateway Plaza, 24th Floor Facsimile: 916.443.9017 Los Angeles, CA 90012 Telephone: 213.922.2525 Attorneys For Respondents and Real Parties In Interest LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY; LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY BOARD I. INTRODUCTION The Exposition Metro Line Construction Authority and the Exposition Metro Line Construction Authority Board (“Authority”), along with the Los Angeles County Metropolitan Transportation Authority and the Los Angeles County Metropolitan Transportation Authority Board, oppose the Request for Judicial Notice (“RJN”) filed by Appellant Neighbors for Smart Rail (‘NFSR”). NFSR seeks to introduce evidence of certain facts through the RJN. While the Court may take judicial notice of the existence of the documents, the RJN doesnot establish the truth of factual matters discussed in the documents. Wl. JUDICIAL NOTICE EXTENDS TO ONLY TO THE EXISTENCE OF THE DOCUMENTS, NOT THE TRUTH OF THE FACTUAL MATTERSIN THE DOCUMENTS. The Court may only grant judicial notice of the existence of the documents submitted by NFSR not the truth of factual matters that may be deduced from those documents. “[T]he taking ofjudicial notice of the official acts ofa government entity does not in and ofitself require acceptance of the truth of factual matters which might be deduced therefrom, since in many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom.” (People v. Mangini (1994) 7 Cal.4th 1057, 1063-1064, quoting Cruz v. County ofLos Angeles (1985) 173 Cal.App.3d 1131, 1133-1134.) NFSRrequests that the Court take judicial notice of seventeen documents comprised ofstaff reports, newsletters, construction notices and press releases issued by the Authority. Through the RJN, NFSR seeks to prove that construction of the Exposition Corridor Light Rail Transit Project Phase 2 (“Project”) is causing irreparable harm. (See RJN,p. 3.) The documents subject to the RJN at most show that construction in certain portions of the Project alignment has commenced. The RJN documents do not provide evidence that the ongoing construction will cause irreparable | harm and the Court may not accept any statements in the RJN documents as establishing that ongoing construction will cause irreparable harm. Plaintiffs are required to demonstrate through other competent evidence that ongoing construction is causing irreparable harm, but Plaintiffs have failed to do so. Ill CONCLUSION: The Court should deny NFSR’s Request for Judicial Notice. n LLP J) Rdéert D. Thérnton Attorneys for Respondents EXPOSITION METRO LINE CONSTRUCTION AUTHORITY and EXPOSITION METRO LINE CONSTRUCTION AUTHORITY BOARD Dated: October 19, 2012 Nodsa By: — with — John F. Krattli, County Counsel Ronald W. Stamm,Principal Deputy County Counsel Office of the Los Angeles County Counsel ‘Transportation Division — and — Tiffany K. Wright Remy Moose Manley, LLP Attorneys for Respondents and Real Parties In Interest LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY and LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY BOARD Case No. 8202828, Court of Appeal, Second Appellate District, Division Eight, Case No. B232655 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA NEIGHBORS FOR SMART RAIL, Petitioner and Appellant Vv. EXPOSITION METRO LINE CONSTRUCTION AUTHORITY,ET AL., Respondents, LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION, et al., Real Parties-in-Interest and Respondents. [PROPOSED] ORDER For good cause appearing, the Request for Judicial Notice is DENIED. Chief Justice PROOF OF SERVICE The undersigned declares: [am employed in the County of Orange County, State of California. I am overthe age of 18 and am nota party to the within action; my business address is Nossaman LLP, 18101 Von Karman Avenue, Suite 1800, Irvine, _ CA 94612. On October 19, 2012, I served the foregoing RESPONDENT’S OPPOSITION TO REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR STAY FILED BY PETITIONER AND APPELLANT; [PROPOSED] ORDERonparties to the within action as follows: L (By U.S. Mail) On the samedate, at my said place of business, an original enclosed in a sealed envelope, addressed as shown on the attached service list was placed for collection and mailing following the usual business practice of my said employer. I am readily familiar with my said employer's business practice for collection and processing of correspondence for mailing with the United States Postal Service, and, pursuantto that practice, the correspondence would be deposited with the United States Postal Service, with postage thereon fully prepaid, on the samedate at Irvine, California. (By Overnight Service) I served a true and correct copy by commoncarrier promising overnight delivery as shown on the carrier’s receipt for delivery on the next business day. Each copy wasenclosed in an envelope or package designated by the common carrier; deposited in a facility regularly maintained by the common carrier or delivered to a courier or driver authorized to receive documents on its behalf; with delivery fees paid or provided for; addressed as shown on the accompanyingservicelist. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on October 19, 2012. Leanne Boucher SERVICE LIST John M. Bowman,Esq. C. J. Laffer, Esq. Elkins Kalt Weintraub Reuben Gartside LLP 2049 Century Park East, Suite 2700 Los Angeles, CA 90067 Telephone. 310.746.4400 Michael H. Zischke, Esq. Andrew B. Sabey, Esq. Rachel R. Jones, Esq. Cox, Castle & Nicholson 555 California Street, 10" Floor San Francisco, CA 94104 Telephone. 415.392.4200 Bradley R. Hogin, Esq. Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 Telephone: 714.415.1006 Office of the City Attorney City of Los Angeles Carmen A. Trutanich, City Attorney Andrew J. Nocas, Supervising Attorney Timothy McWilliams, Dep. City Attorney Siegmund Shyu, Dep. City Attorney 200 North Main Street 701 City Hall East Los Angeles, CA 90012 Telephone: 213.978.8231 Hon. Thomas I. McKnew,Jr. Department SE H c/o Clerk of the Court Los Angeles Superior Court 12720 Norwalk Blvd. Norwalk, CA 90650 Telephone: 562.807.7266 Attorneysfor Petitioner and Appellant NEIGHBORSFOR SMARTRAIL Attorneysfor Amicus Curiae LEAGUE OF CALIFORNIA CITIES CALIFORNIA STATE ASSOCIATION OF COUNTIES Attorneysfor Amicus Curiae SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS, ETAL. Attorneysfor Amicus Curiae CITY OFLOSANGELES California Court of Appeal Second Appellate District Division Eight 300 S. Spring Street 2™ Floor, North Tower Los Angeles, CA 90013 Telephone: 213.830.7000