PARATRANSIT v. UNEMPLOYMENT INSURANCE APPEALS BOARDAppellant’s Reply in Support of Request for Judicial NoticeCal.Jul 15, 2013PILES VWutyii tbidIeinewiht Case Number 8204221 SUPREME COURT IN THE SUPREME COURTOF CALIFORNIA FILED JUL 15 2013 PARATRANSIT, INC., Frank A. Respondent, McGuire Clerk Deputy V. UNEMPLOYMENT INSURANCE APPEALS BOARD Respondent, CRAIG MEDEIROS Petitioner, Real Party in Interest and Appellant. [PROPOSED] REPLY IN SUPPORT OF APPELLANT’S REQUEST FOR JUDICIAL NOTICE *Stephen E. Goldberg, State Bar No. 173499 Sarah R. Ropelato, State Bar No. 254848 Legal Services ofNorthern California 515 12" Street Sacramento CA 95814 (916) 551-2150 (916) 551-2196 Fax sgoldberg@I\snc.net sropelato@lsnc.net Attormeys for Petitioner, Real Party in Interest and Appellant Craig Medeiros RECEIVED JUL 11 2013 CLERK SUPREME COURT REPLY IN SUPPORT OF APPELLANT’S REQUEST FOR JUDICIAL NOTICE Real Party in Interest and Appellant Craig Medeiros requests judicial notice of seven federal labor arbitrator decisions whichhecited aslegal authority supporting arguments in his reply brief. Despite arguing for the first time in its brief to this Court that federal labor law principles are relevant to interpretation of the collective bargaining agreement in this case, Paratransit opposes judicial notice ofthis federal labor law authority. Paratransit is wrong. This Court can and should take judicial notice of the laborarbitrator decisions as relevantlegal authority. I. OPPOSITION TO THE REQUEST FOR JUDICIAL NOTICE WASFILED LATE. California Rule of Court 8.54(a)(3) requires opposition to any motion be filed within 15 days after the motionis filed. A request for judicial notice is a motion. (Cal. Rule Court 8.252(a)(1).) Medeiros’ Request for Judicial Notice was filed on May 20, 2013. Paratransit had | until June 10, 2013 to file its opposition (15 days plus five days for mail service). Paratransitfiled its opposition on June 13, 2013, which wasthree days late. Therefore, Paratransit’s opposition should be disregarded. II. FEDERAL LABOR ARBITRATOR DECISIONS ARE SUBJECT TO JUDICIAL NOTICE UNDER EVIDENCE CODE SECTION452. This Court has the same powerastrial courts to take judicial notice. (Evid. Code § 459.) Evidence Code Section 452(c) authorizes judicial 1 notice of “Official acts of the legislative, executive and judicial departments of the United States... .” The Federal Mediation and Conciliation Service (FMCS)is an agency within the United States Department ofLaborthat provides arbitration services for “final adjustment of grievances or questions regarding the application or interpretation of” collective bargaining agreements. (29 U.S.C. § 171(c); 29 U.S.C. § 173(d) and (f).) As evidenced by their EMCS case numbers, Exhibits 2,4, 5, and 7 of Appellant’s Motion for Judicial Notice in Support of Reply Brief are FMCS cases wherein the arbitrator was appointed by and pursuant to FMCS’ procedures. FMCSarbitrators “must demonstrate experience, competence, and acceptability in decision-makingroles in the resolution of disputes arising from collective bargaining agreements,” be reviewed bya special FMCSReview Boardto assure they meet the qualification standards, and be appointed by the Director. (http://www.fimcs.gov/ internet/itemDetail.asp?categoryID=184&itemID=16436.) FMCSlabor arbitrator decisions are, therefore, official acts of an executive agency of the United States and judicially noticeable under Evidence Code Section 452(c). Additionally, the contents of the labor arbitrator decisions are facts not reasonably subject to dispute and, therefore, also judicially noticeable - under Evidence Code § 452(h) regardless of FMCS involvement.’ Labor arbitrator decisions, when used as legal authority as requested here, are the equivalentofjudicial decisions. (See e.g Consolidated Coal Co. v. United Mine Workers ofAmerica District 12 Local Union 1545 (7" Cir. 2000) 213 F.3d 404, 407; Smith v. U.S. Postal Service (Fed. Cir. 2002) 45 Fed. Appx. 928, *3.) | In fact, the treatise Paratransit relies on in its brief cites labor arbitrator decisions as its authority. (Elkouri & Elkouri, How Arbitration Works (7" Ed. 2010) at p.16-31.) Paratransit does not contest the authenticity of the arbitrator decisions. Judicial notice of arbitration decisions, which constitute legal authority on point, is appropriate under Evidence Code Section 452(h). IH. BROSTERHAUSV. STATE BAR IS INAPPOSITE Brosterhaus v. State Bar (1995) 12 Cal.4™ 315 doesnot support Paratransit’s claim that arbitration decisions are not subject to judicial | notice. The Court expressly did not address the issue. “Weneed not decide the propriety ofjudicial notice of a State Bar arbitration, however.” (Id. at ‘Exhibits 3, 6, and 9 to Appellant’s Motion for Judicial Notice in Support of Reply Brief are not FMCSarbitration decisions. As a result, Appellant acknowledgesthat judicial notice of these three decisions should have been requested under Evidence Code section 452(h) rather than 452(c). Appellant, therefore, requests that the Court consider the request for notice of these decisions under section 452(h) and that the Court consider the request for notice of Exhibits 2, 4, 5, and 7 (i.e. the FMCS decisions) under both section 452(c) and 452(h). p.325.) Brosterhaus is not authority for an issue the Court did not decide. (Kinsman v. Unical Corp. (2005) 37 Cal.4™ 659, 680.) Brosterhaus did hold that arbitration that is not part of a judicial proceedingis not a court record subject to judicial notice under Evidence Code Section 452(d). (Ud. at p.325.) That does not make them anyless judicially noticeable as acts of an agency of the United States under subdivision (c) and indisputable facts under subdivision (h). Nothing in Brosterhaus suggests that judicial notice was requested undereither of these sections. Moreover,the judicial notice request in Brosterhaus wasfor the record of arbitration proceedings to support a claim ofres judicata, not a requestforjudicial notice arbitration decisions. (Id. at p.324.) Here, the requestis only for arbitration decisions, and the purposeis legal authority, not evidence orthe truth of any matters. Brosterhaus says nothing about judicial notice of arbitration decisions as legal authority. Furthermore Brosterhaus rejected the judicial notice request because, without explanation, the request was not presented to thetrial court. (/d. at pp. 325-26.) Here, the labor arbitration decisions were not relevant until Paratransit raised federal preemption under federal labor law for the first time in its brief on the merits in this Court. Medeiros had no occasion to request judicial notice of the arbitration decisionsprior to filing his reply brief. They had no relevanceto the case before then. Brosterhaus 4 also questioned whether State Bar arbitrations are official actions of the judicial departmentjudicially noticeable under Evidence CodeSection 452(c) becausearbitrations are not part of the State Bar’s function as an administrative arm of the court. (id. at p.325.) FMCSlaborarbitrations are acts of an executive departmentof the United States and, therefore, properly subject to judicial notice under Evidence Code Section 452(c). Finally, Paratransit claims laborarbitrator decisions should not be judicially noticed because they are aboutspecific collective bargaining agreements. The sameis true of every decision of this and every other court. Paratransit’s logic would mean no judicial decision or precedential administrative agency decision could ever be cited as authority because every case hasits own, specific facts. Here,just as judicial decisions are cited for the principles and rules of law theystate, the labor arbitrator decisions Medeiros asks the Court to judicially notice are cited for principles and rules of federal labor law that apply generally and are notlimited to the collective bargaining agreement in any particular case. The legal propositions stated in the labor arbitrator decisions treat the very points of federal labor law that Paratransit contends are relevant. Evidence Code Section 452(c) authorizes the Court totake judicial notice not only of acts ofexecutive agencies, but acts of the judicial branch as well. Taking judicial notice of a federal agency’s labor arbitrator 5 decisionsthat state law directly relevant to Paratransit’s claims is as proper as taking judicial notice of citable decisions of courts.” CONCLUSION Laborarbitrator decisions stating and applying federal labor laws are subject to judicial notice under Evidence Code Section 452(c) and (h). The only authority Paratransit relies on, Brosterhaus v. State Bar (1995) 12 Cal.4" 3 15, specifically declined to decide whetherthe arbitration records at issue there were judicially noticeable, and the rationale for not taking judicial notice in Brosterhaus does not apply here. Medeiros’s request for judicial notice of the labor arbitrator decisions should be granted. on Meher Lllbrers Stephen E. Goldberg Attorney for Real Party in incest, and Appellant Craig Medeiros Dated: July 9, 2013 * Paratransit asks that the entire argument in Medeiros’ reply brief where labor arbitrator decisions are cited should be stricken. This is overreaching. At most, the citation to the labor arbitrator decisions could bestricken, but the arguments remain based on other authority and logic. 6 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 old and not a party to the within action. Mybusinessaddress is 515 12"Street, Sacramento California 95814. On July 9, 2013, I served the within [Proposed] Reply in Support of Appellant’s Request for Judicial Notice in Paratransit, Inc. v. Unemployment Insurance Appeals Board (Craig Medeiros), California Supreme Court Case Number $204221 [Third Appellate Dist. Ct. of Appeal Case No. C063863; Sacramento County Sup. Ct. Case No. 34-2009-80000249-CU-WM- GDS] by placing a true copy enclosed in a sealed envelope, addressed as follows: Laura C. McHughand Alex K. Levine Rediger McHugh & Owensby, LLP. 555 Capitol Mall, Suite 1240 Sacramento CA 95814 Michael Hammang, Deputy Attorney General Office of the Attorney General 1300 I Street, Suite 125 Sacramento CA 95814 Honorable Timothy M.Frawley Sacramento Superior Court 720 Ninth Street, Department 29 Sacramento CA 95814 Third Appellate District Court of Appeal 914 Capitol Mall Sacramento CA 95814 I declare underpe alty of perjury under the lawsofthe State of California that the foregoingis t. Executed on this 9" day of July 2013, at Sacramento Californiaenob a0
