PARATRANSIT v. UNEMPLOYMENT INSURANCE APPEALS BOARDRespondent’s Opposition to Appellant’s Reply in Support of Request for Judicial NoticeCal.Jul 30, 2013S204221 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PARATRANSIT,INC. Plaintiff and Respondent, PILED WHH Prbowilooiiy VS. UNEMPLOYMENT INSURANCE APPEALS BOARD SUBREMECOURTFILED Defendant; CRAIG H. MEDEIROS, JUL 30 2013 Real Party in Interest and Appellant. Frank A. McGuire Clerk Weputy After a Decision of the Court of Appeal, Third Appellate District Court Case No. C06386_ Appeal from a Judgmentofthe Superior Court ofthe State of California, County of Sacramento Honorable Timothy M.Frawley, Judge Case No. 34-2009-80000249 RESPONDENT?’S OPPOSITION TO APPELLANT’S REPLY IN SUPPORT OF APPELLANT’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 i : Imchugh@rmlaw.netEmail: RECEIVED Attorneys for Plaintiff and Respondent, PARATRANSIT,INC. _ y P JUL 24 2013 CLERK SUPREME COURT RESPONDENT’S OPPOSITION TO APPELLANT’S REPLY IN SUPPORT OF APPELLANT’S REQUEST FOR JUDICIAL NOTICE TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: By application filed on Thursday, July 11, 2013 in the above- captioned matter, Appellant sought leave to file a reply in support ofhis own request for judicial notice.' On Monday, July 15, 2013, said Application was granted and Appellant’s Reply in Support of Appellant’s Request for Judicial Notice (hereinafter “RJN Reply”) was filed. Respondent now opposes Appellant’s RJN Reply. The California Rules of Court do not expressly authorize the filing of a reply to an opposition. Since Appellant failed to meet any of the requirements for filing an application under California Rules of Court, rule 8.50, it must be presumed that Appellant’s RJN Reply was brought as a new motion under California Rules of Court, rule 8.54. Consequently, pursuantto subdivision (a)(3) of said rule, Respondentis entitled to oppose said motion within 15 days. In his RIN Reply, Appellant argues that Respondent’s Opposition to Appellant’s Request for Judicial Notice was untimely. Appellant is ' Respondent attempted to oppose Appellant’s Application after it received such in the mail on Wednesday, July 10, 2013. Said Application wasfiled in this Court on Thursday, July 11, 2013. Respondent mailed to this Court, via FedEx, its Opposition to Appellant’s Application on Friday, July 12, 2013. Said Opposition was received by this Court on Monday, July 15, 2013, however this Court granted Appellant’s Application before it could consider Respondent’s Opposition. Accordingly, the Clerk of this Court did not file Respondent’s Opposition, as it was “moot,” and then returned such to Respondent on July 15, 2013. 1 incorrect. Appellant mistakenly believes that his Request for Judicial Notice wasfiled on May 20, 2013, however such wasonly received bythis Court on that date. Appellant’s Request for Judicial Notice was filed on May 29, 2013, therefore pursuant to California Rules of Court, rule 8.54, subdivision (a)(3), Respondent had 15 days from May 29, 2013 to file an opposition. Respondent’s opposition,filed on June 13, 2013, was therefore timely. In his initial request for judicial notice, Appellant failed to adequately provide grounds for requesting judicial notice of the seven labor arbitration decisions. However, with this Court’s permissionto file a reply to said request, Appellant was graciously given a second chance to attempt to argue the merits. In his RJN Reply, Appellant asserts two fallible 2 of the seven labor arbitration decisions arearguments: 1) that four noticeable as “official acts” of the Federal Mediation and Conciliation Service (hereinafter “FMCS”) under Evidence Code section 452, subdivision (c), and 2) that all seven of the labor arbitration decisions are noticeable under Evidence Code section 452, subdivision (h) as “facts or propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Labor arbitration decisions cannot properly be considered an “official act” of the FMCS. A list of FMCSpolicies is found at 29 Code of Federal Regulations part 1403.2 (2013). Subdivision (a) of said part states that it is FMCS policy, “To facilitate and promote the settlement of labor- management disputes through collective bargaining by encouraging labor and management to resolve differences through their own resources.” 2 In a footnote in his RJN Reply, Appellant admits that at least three of the labor arbitration decisions cannot be properly noticed under Evidence Code section 452, subdivision (c). (Appellant’s RJN Reply at p. 3, fn 1.) 2 Subdivision (f) of the samepart states, “To proffer its services to the parties in grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement only as a last resort and in exceptional cases.” Definitions are set forth in 29 Code of Federal Regulations part 1403.1 (2013). Subdivision (e) therein states, “The term proffer its services, as applied to the functions and duties of the [FMCS], means to make mediation services and facilities available either on its own motion or upon the request of one or moreofthe parties to a dispute.” (29 C.F.R. § 1403.1(e) (2013), original italics.) The FMCS merely facilitates the selection of an arbitrator for parties who are desirous of pursuing voluntary arbitration. Moreover, the FMCSdoes not require publication of arbitration awards. (29 C.F.R. § 1404.14(d) (2013) [“While FMCS encourages the publication of arbitration awards, arbitrators should not publicize awards if objected to by one of the parties.”].) Accordingly, a decision rendered by a labor arbitrator selected by private parties to interpret a private collective bargaining agreement, cannot be properly characterized as an “official act” of the FMCS as the FMCS’srole in the final decision is limited to the procedure utilized by the parties to select an arbitrator. Appellant also wrongly asserts that labor arbitration decisions are entitled to judicial notice under Evidence Code section 452, subdivision (h) which permits notice of “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Once again, Appellant has not provided any authority to support his assertion. Appellant merely offers his unfounded opinion that “the contents of the labor arbitration decisions are facts not reasonably subject to dispute.” (Appellant’s RJN Reply at p. 2.) Appellant misreads the plain language of Evidence Code section 452, subdivision (h) since such specifically states 3 that facts and propositions are what must not be reasonably subject to dispute. As one appellate court explained, “These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs andthe like or by persons learned in the subject matter [citation].” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.) Surely, “the contents” of an arbitrator’s decision in a single matter cannot be properly classified as “facts and propositions” within the meaning of subdivision (h). Lastly, Respondent maintains that Brosterhous v. State Bar (1995) — 12 Cal.4th 315 provides persuasive authority for the determination of the present request for judicial notice as it argued in its Opposition filed on June 13, 2013. CONCLUSION For the reasons set forth above, the Appellant’s Request for Judicial Notice should be denied as to the seven laborarbitration decisions included ~ in Appellant’s initialrequest as Exhibits 2 through 7, and9.7 ~ DATED: July 23, 2013. Respectfully submitted, REDIGER, McHUGH & OWENSBY, LLP By Me CANDICE K. REDIGERi — Attorney for Respondent, PARATRANSIT,INC. 3 As stated in its initial Opposition, Respondent does not take any position on Appellant’s request for judicial notice of the documents attached to said motion as Exhibits | and8. 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 nota party to the within action. My business addressis 555 Capitol Mall, Suite 1240, Sacramento, California 95814. On July 23, 2013, I caused to be served the within RESPONDENT’S OPPOSITION TO APPELLANT’S REPLY IN SUPPORT OF APPELLANT’S 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 CountySuperiorCourt 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 Departmentof Justice 1300 “I” Street, Suite 125 Sacramento, CA 95814 XXXX and placing the same with postage thereonfully prepaid in 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 23™day ofJuly 2013, at Sacramento, California.