PARATRANSIT v. UNEMPLOYMENT INSURANCE APPEALS BOARD

Respondent’s Opposition

Cal.June 13, 2013

$204221 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PARATRANSIT,INC. SUPREME COUR! | Plaintiff and Respondent, FILE D VS. JUN 13 2013 UNEMPLOYMENTINSURANCE APPEALS BOARD crank A. McGuire Clerk Defendant; Deputy CRAIG H. MEDEIROS, Real Party in Interest and Appellant. After a Decision of the Court of Appeal, Third Appellate District Court Case No. C063863 Appeal from a Judgmentofthe Superior Court of the State of California, County of Sacramento Honorable Timothy M.Frawley, Judge Case No. 34-2009-80000249 RESPONDENT’S OPPOSITION IN PART TO PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE *Laura C. McHugh, Esq. (CA SBN 180930) Alec K. Levine, Esq. (CA SBN 274839) Candice K. Rediger, Esq. (CA SBN 287146) REDIGER, McHUGH & OWENSBY, LLP 555 Capitol Mall, Suite 1240 Sacramento, California 95814 Telephone: (916) 442-0033 Facsimile: (916) 498-1246 Email: Imchugh@rmlaw.net Attorneys for Plaintiff and Respondent, PARATRANSIT,INC. RESPONDENT’S OPPOSITION IN PART TO APPELLANT’S REQUEST FOR JUDICIAL NOTICE TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES O F THE CALIFORNIA SUPREME COURT: By motion received by this Court on May 20, 2013 and subsequently filed on May 29, 2013 in the above-captioned matter, the Appellant s eeks judicial notice of several documents attached to said motion as Exhibi ts | through 9. Respondent opposesthis motion in part. Evidence Code sections 450 et seg. authorize this Court to take judicial notice of certain, enumerated matters. The Appellant move sthis Court to take judicial notice of one California Unemployment In surance Appeals Board (“CUIAB”) decision, one National Labor Relations Board (“NLRB”) decision, and seven federal labor arbitration dec isions. (Appellant’s Motion for Judicial Notice (“Appellant’s RJN”) at p p. 2-5, Exhibits 1-9; Appellant’s Reply Brief (“ARB”) at pp. 16-17, 20, 29, 36.) Appellant requests this Court to take judicial notice of said documen ts for the purported purpose of “respond[ing] to the arguments raised in Respondent’s AnswerBrief.” (Appellant’s RJN at p. 4.) This Cou rt should deny the Appellant’s request thatit take judicial notice of the se ven labor arbitration decisions. Appellant asks this Court to take judicial notice of the labo r arbitration decisions pursuant to Evidence Code sections 459 and 452, subdivision (c). Section 459 permits a reviewing court to tak e judicial notice of, inter alia, any matter specified in section 452. The Appellant argues that the seven labor arbitration decisions are an appropri ate subject for judicial notice under section 452, subdivision (c), w hich states that judicial notice may be taken of “Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” However, the Appellant provides no authority for how labor arbitration decisions could be considered an official act of either the legislative, executive, or judicial department of the United States or of any otherstate. In Brosterhous v. State Bar (1995) 12 Cal.4th 315, this Court considered whether it was properto take judicial notice of the entire record of the parties’ arbitration proceeding. Although this Court specifically stated, “We need not decide the propriety of judicial notice of a State Bar arbitration,” and ultimately denied the judicial notice request by reasoning that the request had not been made in the Superior Court, it did address the Respondent’s argument regarding the appropriateness of taking judicial notice of the record under Evidence Code section 452, subdivisions (d), (h) and (c). (Ud. at pp. 324-25.) In rejecting the Respondent’s argumentthat the arbitration record was a “quasi-judicial proceeding” pursuant to section 452, subdivisions (d) and (h), this Court explained, “[T]he [Respondent] offers no authority for expanding the statutory authorization to include the records of arbitration proceedings that are not conducted as part of a judicial action” and that subdivision (h) pertained to “facts and propositions.” (/bid.) In rejecting judicial notice pursuant to Evidence Code section 452, subdivision (c), the Brosterhous Court stated: Because the State Bar is an administrative arm of the court only in its admissions and disciplinary functions [citation], the record of the arbitration proceeding is not subject to judicial notice as a record of the acts of the judicial department under subdivision (c) of Evidence Code section 452. Although the State Bar has been described as a public corporation and akin to a state public body or agency [citation], subdivision (c) does not clearly make its actions matters subject to judicial notice as acts of either the legislative or executive department. (Brosterhous, supra, 12 Cal.4th at p. 325.) While Brosterhous is distinguishable from the case at bar, it nonetheless provides guidance on taking judicial notice of arbitration proceedings. By his request for judicial notice of the seven labor arbitration decisions, the Appellant seeks to rely upon the rationale of various arbitrators in interpreting private agreements in light of the contracting parties’ intent. The arbitrator’s findings in these decisions are fact sensitive and unique to the collective bargaining agreements and bargaining history between the parties therein, and therefore do not, and should not, serve as precedence in this case. As the United States Supreme Court explained in Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36, 56-57 [94 S.Ct. 1011, 1024, 39 L.Ed.2d 147], the arbitrator’s “task is to effectuate the intent of the parties rather than the requirements of enacted legislation.” In sum, Evidence Codesection 450 states, “Judicial notice may not be taken of any matter unless authorized or required by law.” Arbitration decisions concerning private contract interpretation are not a proper subject for judicial notice pursuant to Evidence Code section 452, subdivision (c), or any other subdivision therein. The Appellant has provided no authority supporting his request for judicial notice of the seven labor arbitration decisions. Accordingly, and applying the rationale of this Court’s decision in Brosterhous, supra, 12 Cal.4th at pp. 324-325, his request should be denied. Should the court deny the Appellant’s request for judicial notice, the Respondent further moves this court pursuant to Code of Civil Procedure section 437, to disregard and strike the portions of the Appellant’s Reply Brief where Appellant improperly relies upon the seven federal labor arbitration decisions CONCLUSION For the reasons set forth above, the Appellant’s request for judicial notice of those documents attached to said motion as Exhibits 2 through 7 and Exhibit 9, should be denied. ! DATED: June 12, 2013. Respectfully submitted, REDIGER, McHUGH & OWENSBY, LLP CANDICE K. REDIGE Attorneys for Respondént, PARATRANSIT, INC. ' Respondentdoesnottake any position on Appellant’s request for judicial notice of the documents attached to said motion as Exhibits 1 and 8. 4 CERTIFICATE OF SERVICE I am a citizen of the United States of America and am employed in 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 June 12, 2013, I caused to be served the within Respondent’s Opposition in Part to Plaintiffs Request for Judicial Notice, in Paratransit, Inc. v. Unemployment Insurance Appeals Board; Craig Medeiros; California Supreme Court Case No. $204221 [Third Appellate Dist. Ct. of Appeal Case No. C063863; Sac. County Sup. Ct. Case No. 34- 2009-80000249-CU-WM-GDS]byplacing a true copy thereof enclosed in a sealed envelope, addressed as follows: Sarah R. Ropelato, Esq. Attorneys for Real Party Stephen E. Goldberg, Esq. in Interest and Appellant, Legal Services of Northern California CRAIG MEDEIROS 515 — 12" Street Sacramento, CA 95814 The Honorable Timothy M.Frawley Trial Court Judge Sacramento County Superior Court 720 Ninth Street Sacramento, CA 95814 Third Appellate District Court of Appeal 621 Capitol Mall, 10™ Floor Sacramento, CA 95814-4719 Michael Hammang, Deputy Attorney General Department of Justice 1300 “I” Street, Suite 125 Sacramento, CA 95814 XXXX and placing the same with postage thereon fully prepaidin the designated area for outgoing mail. I am readily familiar with Rediger, McHugh & Owensby, LLP’s practice of collecting and processing correspondence whereby the mail is sealed, given the appropriate postage and placed in a designated mail collection area. Each day’s mail is collected and deposited with the United States Postal Service after the close of each day’s business. I declare under penalty of perjury that the foregoing is true and correct. Executed on this 12" day of June 2013, at Sacramento,rdfeo. INE L.oy