LOS ANGELES, CITY OF v. COUNTY OF KERN

Respondents’ Answer Brief on the Merits

Cal.September 23, 2013

SUPREME COURT No. $210150 SEP 2 3 2013 (Court of Appeal Case No. F063381) . . (Tulare County Superior Ct. No. VCU242057) Frank A. McGuire Clerk Deputy IN THE SUPREME COURTOF THE STATE OF CALIFORNIA City of Los Angeles, Responsible Biosolids Management, Inc., R&G Fanucchi, Inc., Sierra Transport, Inc., County Sanitation District No. 2 of Los Angeles County, Orange County Sanitation District, California Association of Sanitation Agencies Plaintiffs and Respondents v. County of Kern and Kern County Board of Supervisors Defendants and Appellants RESPONDENTS’ ANSWER ON THE MERITS MICHAEL N. FEUER (NO. 111529) Michael J. Lampe (SBN 82199) City Attorney Michael P. Smith (SBN 206927) VALERIE FLORES(No. 138572) LAW OFFICES OF MICHAELJ. Managing Assistant City Attorney LAMPE EDWARD M.JORDAN(No. 180390) 108 W. Center Avenue Assistant City Attorney Visalia, California 93291 CITY OF LOS ANGELES Telephone: (559) 738-5975 1800 City Hall, 200 N. Main Street Facsimile: (559) 738-5644 Los Angeles, CA 90012-4110 Email: mjl@lampe-law.com Telephone: (213) 978-8100 Facsimile: (213) 978-8211 Email: ted.jordan@lacity.org Attorneysfor Plaintiffand Respondent City ofLos Angeles Gary J. Smith (No. 141393) James B. Slaughter (pro hac vice Zachary M.Norris (No. 268616) pending) BEVERIDGE & DIAMOND, P.C. BEVERIDGE & DIAMOND,P.C. 456 Montgomery Street, Suite 1800 13501 Street, N.W., Suite 700 San Francisco, CA 94104-1251 Washington, DC 20005-3311 Telephone: (415) 262-4000 Telephone: (202) 789-6000 Facsimile: (415) 262-4040 Facsimile: (202) 789-6190 Email: gsmith@bdlaw.com Email: jslaughter@bdlaw.com znorris@bdlaw.com Attorneysfor Plaintiffs and Respondents City ofLos Angeles, Responsible Biosolids Management, Inc., R&G Fanucchi, Inc., and Sierra Transport, Inc. {See signature pages for other parties and counsel] No. 8210150 (Court ofAppeal Case No. F063381) (Tulare County Superior Ct. No. VCU242057) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA City of Los Angeles, Responsible Biosolids Management, Inc., R&G Fanucchi, Inc., Sierra Transport, Inc., County Sanitation District No. 2 of Los Angeles County, Orange County Sanitation District, California Association of Sanitation Agencies Plaintiffs and Respondents Vv. County of Kern and Kern County Board of Supervisors Defendants and Appellants RESPONDENTS’ ANSWER ON THE MERITS MICHAELN. FEUER(NO. 111529) Michael J. Lampe (SBN 82199) City Attorney Michael P. Smith (SBN 206927) VALERIE FLORES(No. 138572) LAW OFFICES OF MICHAELJ. Managing Assistant City Attorney LAMPE EDWARD M. JORDAN(No. 180390) 108 W. Center Avenue Assistant City Attorney Visalia, California 93291 CITY OF LOS ANGELES Telephone: (559) 738-5975 1800 City Hall, 200 N. Main Street Facsimile: (559) 738-5644 Los Angeles, CA 90012-4110 Email: mjl@lampe-law.com Telephone:(213) 978-8100 Facsimile: (213) 978-8211 Email: ted.jordan@lacity.org Attorneysfor Plaintiffand Respondent City ofLos Angeles Gary J. Smith (No. 141393) James B. Slaughter (pro hac vice Zachary M. Norris (No. 268616) pending) BEVERIDGE & DIAMOND, P.C. BEVERIDGE & DIAMOND,P.C. 456 Montgomery Street, Suite 1800 13501 Street, N.W., Suite 700 San Francisco, CA 94104-1251 Washington, DC 20005-3311 Telephone: (415) 262-4000 Telephone: (202) 789-6000 Facsimile: (415) 262-4040 Facsimile: (202) 789-6190 Email: gsmith@bdlaw.com Email: jslaughter@bdlaw.com znorris@bdlaw.com Attorneysfor Plaintiffs and Respondents City ofLos Angeles, Responsible Biosolids Management, Inc., R&G Fanucchi, Inc., and Sierra Transport, Inc. [See signature pages for other parties and counsel] TABLE OF CONTENTS INTRODUCTION 00... eccceseeccssecserseeacenecesesesecessnesseecaeceseeaeeeeeeesessaseenseeaes 1 STATEMENT OF FACTS AND PROCEEDINGS BELOW.............:0068 3 ARGUMENT.eesscccssssssesessccsssnseeseesssssnsnsnsseseessnsveseesnsssesessnsnssseseessniesssessuneeses 8 I. STANDARD OF REVIEW. ........cccccscccssesssceseeceseceesesecseeeseeeseeeseseneens 8 I. RESPONDENTS’ PREEMPTION AND POLICE POWER CLAIMS ARE TIMELY UNDER28 U.S.C. § 1367(d)...........ccee 9 A. The Common Meaningof“Toll” Is Suspend or Interrupt 2.0... eeccceecsccessecsccesseecseeeecssenececeesneecsesecsseeeesaeeseseeeenes 9 B. The Plain Language of 28 U.S.C. § 1367(d) Requires Suspension ofthe Statute ofLimitations...eee 12 1. Section 1367(d) Applies Unconditionally to All Supplemental State Law Claims...eeeeeeeseeeees 14 2. Section 1367(d) Tolls the Limitations Period for State Supplemental Claims While They Are Pending in Federal Court...cee ecceseseesesesseneeeensens 16 3. Section 1367(d) Tolls Claims Over Two Periods, Rather Than Merely Imposing a Thirty Day Maximum Tolling .00...eeeeeseeeeeeseeeneeseeeenees 17 4, The Statute as Written by CongressIs Amenable Only to the Suspension Approach............ 18 C. Courts Interpreting “Tolling” Within the Text of § 1367 Have Confirmed the Suspension Approach................. 20 D. The Supreme Court’s 1983 Fumero Soto Opinion Does Not Change the Meaning of Tolling or the Interpretation Of § 1367(d)..........c::cecsssccsssscssseessetssseeseeeessteees 22 E. Kern’s Policy Arguments Do Not Justify a Departure . from the Suspension Approach...........ceeseceeseseeesreeteeeeneeenes 25 F, Respondents’ IWMA and Police Power Claims Are Timely on Additional Grounds Which the Courts Below Did Not Reach or Decide ........... cc cccccsceessessseeeseeeeeees 30 CONCLUSION0.0. ceeccsneeeseesseneesseneesseeseeesaeesaesesaessaeeaeerseseteceeeneeseaeenes 31 TABLE OF AUTHORITIES CASES Addison v. State ofCal., 21 Cal. 3d 313 (1978).....ccccccssssstesssesetsesessesssessnesseesseens 11 Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974)... cececeseeeeseeseresseeesseeseenes 29 Barrett v. Rosenthal, 40 Cal. 4th 33 (2006) .........:ccesscesseeesssscsssseeesseeecessccennvenseeaes 20 Berke v. Buckley Broadcasting Corp., 821 A.2d 118 (N.J. Super. Ct. App. Div. 2003) .....cccccescsssceseeseeesecsescescerceceeseeenseacescessaeseeceesseseaesseeesessaeesseseseeeeeenes 15, 21 Bonifield v. Cnty. ofNevada, 94 Cal. App. 4th 298 (2001)... ce eeeeeseeseeses passim Aiuto v. City & Cnty. ofSan Francisco, 201 Cal. App. 4th 1347 (2011)............. 30 Chardon v. Fumero Soto, 462 U.S. 650 (1983) 0... ceeeseeseseeseeeseeeeseeererseeens passim City ofLos Angeles v. Cnty. ofKern, 158 Cal. Rptr. 3d 259 (2013) oo...eee 8 City ofLos Angeles v. Cnty. ofKern, 214 Cal. App. 4th 394 (2013)...eee 7 City ofLos Angeles v. Cnty. ofKern, 462 F. Supp. 2d 1105 (C.D.Cal. 2O06)...escecseccescecssessceeceaeeccscenesscsetsceraceaeesnseseceaesensensssesseteneeseeeseeesaeeseseeseassatenesees 5 City ofLos Angeles v. Cnty. ofKern, 509 F. Supp. 2d 865 (C.D. Cal 2007) ...csccescesceeccesceesceccesssceecsecsecscseessesscescessesaesesecsseessessesseeseseceseasessessusessesssatsassase 5 City ofLos Angeles v. Cnty. ofKern, 581 F.3d 841 (9th Cir. 2009)...eee 5 City ofLos Angeles v. Cnty. ofKern, No. F063381, slip op. (Cal. Ct. App. Feb. 13, 2013) wo. ceccescessessesesscssecseesessasssssssessssesscscesesessssesasensasseeeneeaes passim Collier v. City ofPasadena, 142 Cal. App. 3d 917 (1986) 0... .eeeeeeeseneeeseeerens 29 Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992).....ecceecsseseesceeesteeeseeseressesenenees 8 Coral Construction, Inc. v. City and Cnty. ofSan Francisco, 50 Cal. 4th 315 (2010)... ec eeeecesscssenecseceescsccescersaetecssesesaressesecseeeseaessecaceneeaceanenersesseeseeeertes 20 Cuadra v. Millan, 17 Cal. 4th 855 (1998)... eecesescsseseeeeeeeaeeeeeeeseesaseeeseeseentsas 11 Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006)... cccccccssssessssceeseseeseseeseeesasens 12 Fontani v. Wells Fargo Invs., 129 Cal. App. 4" 719 (2005) o..eeeeecsecssseeseesteeteeenes 30 Gemsco, Inc. v. Walling, 324 U.S. 244 (1945) o.oo esesesseneseesceneesceeaseateereeseneess 26 Goodman v. Best Buy, 755 N.W. 2d 354 (Minn.Ct. App. 2008).......... cee 16, 21 Goodmanv. Best Buy, 777 N.W.2d 755 (Minn. 2010) .......cccsesscccesteereeeeees passim Gutierrez De Martinez v. Lamagno, 515 U.S. 417 (1995) .o..eeeeeeceesneeseesteeteeenees 14 Hassan v. Mercy American River Hospital, 31 Cal. 4th 709 (2003).........eseee 25 Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001)... .cceecsececseseseeceeeceneeseessesseaees 10 Huang vy. Ziko, 511 S.E. 2d 305 (N.C. Ct. App. 1999)oeeeceeseeeseceeeseeereeesees 21 In re C.H.,, 53 Cal. 4th 94 (2011) vecececeececeeseceeeeeeseeseeseesseeserecseensessesaes 25, 26 In re Vertrue Mktg. & Sales Practices Litig., 712 F. Supp. 2d 703 (N.D. Ohi 2010) oo. eeeeecceeccesecsecseeseeccseeseceaecsecsaceaecaeseeeseeeseeseesseseeeeseeeenens 6, 14, 20, 23 Inre Vertrue Mktg. & Sales Practices Litig., 719 F.3d 474 (6th Cir. 2013).. 14, 20 Jinks v. Richland Cnty., 538 U.S. 456 (2003)... eeseeseeesseseeseeeseeeneesreeeeees 16, 27 K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988) occceeceeesceesereeeeeseneeeteeees 13 Kolani v. Gluska, 64 Cal. App. 4th 402 (1998) oeeeeececscecteseesteeesesseeeees 21,29 Lewis v. Super. Ct. ofLos Angeles Cnty., 175 Cal. App. 3d 366 (1985) ............. 29 Marcus v. Director, Office if Workers’ Comp. Programs, 548 F.2d 1044 (D.C. Cir, 1976) oo.ccecccccssssescsesscnenseseesessesseccsaessersesseereseseneesevsessecensesesreaseesaees 24 il Minn. Mining & Mfg. Co. v. N.J. Wood Finishing Co., 381 U.S. 311 (1965) .oeececcsscescesesseescesecessesecneectaesoteaseneesecaeseesesaceeseesnssedsecsassaseeesstetaseasonsasenees 19 Pearson Dental Supplies v. Sup. Ct. ofLos Angeles Co., 48 Cal. 4th 665 (2010) ..eeeeecccccscscescecesesetseesecereeersceaceaesetseeessseeeecacessssescessesseseesasessdesessetetteseeraeas 17 People v. Leiva, 56 Cal. 4th 498, 506 (2013) ...ccccccscseseceseseeeesseetseeesseses 8,11, 18 Reiter v. Sonotone Corp., 442 U.S. 330 (1979) .cccecssssessessscssestsessseecssensessseees 18 Sterlin v. Biomune Sys., 154 F.3d 1191 (Oth Cir. 1998) ooo.eeeeseereeneeenes 10 Turner v. Kight, 406 Md. 167 (Md. 2008)oescsessserereecssessessseeseneensens 9, 21 United States v. Ibarra, 502 U.S. 1 (1991)... eececcsesecesceeseeenseerseeceeeeerseteeseesaseenees 10 Venegas v. Cnty. ofLos Angeles, 32 Cal. 4th 820 (2004)...cseeeeeeeeees 8, 20 Wood vy. Elling Corp., 20 Cal. 3d 353 (1977)..cscseceeeeedeseseseasseseeeseeceeesensneseaees 12 Woods v. Young 53 Cal. 3d 315 (1991) wee eecceesssesseseesceseseeesenseeaseeesenerseseesaseaeenate 11 Zhang Gui Juan v. Commonwealth, No. 99-032, 2001 WL 34883536 (N.MLI. Nov. 19, 2001) oeseeecneecesereceerssscsesenseseseceesssssceseusessessnsnsseessceaeses 21 STATUTES 15 U.S.C. § 1691 e(f) occ ceeneesccneeeenecceeeseneseeseeneseeeeeseseersusseessessesseenseseseesaeeeeenes 19 28 U.S.C. § 1367(d) ...eeececescsseseeecncessereceesersseeeeeeseseesessuavaesenesensenussessssusensenee passim 28 U.S.C. § 2415(€) cccceeccsscceseeecseseeteeeecesseenessenseseseeessasessavasssessvesessscsessssesetssaenas 19 49D U.S.C. § 11 705d) oo. ceececcessessesecenceecsneteresesesscesesecssessenusserssssesseeatssaseneeeesetenes 19 50 U.S.C. app. § 5268)...ee eeseeceessetseecseesessecseessecessneesesseesseusassssssssecsesseeseneneases 19 OTHER AUTHORITIES 16 James Wm. Moore, Moore’s Federal Practice § 106.66[3][c] (3d ed. 2013) .ecccessccscessecessseeseseeceecsecsceseeecseesereceesenscsssseeeseseesessesessscessessssessesesassenasseeaeses 27 2 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 37:2 (7th ed. 2009) oo. eeeesseeseesseccssersesesssersecesensessesseseeaeeeee 9 Black’s Law Dictionary (8th ed. 2004)...esc eeeeseeeeecesseceesseeseseessereceneetsresenseees 10 Bryan A. Garner, A Dictionary ofModern Legal Usage 884 (2d ed. 1995)........ 10 Federal Practice and Procedure § 3567.4 (3d ed. 2008) .0......eceeceeeseesereeeeeeees 27 H. Rep. 101-734, at 30 (1990), reprinted in 1990 U.S.C.C.A.N.6876.0... 26 Random House Webster’s Dictionary (2nd ed, 1998) 0...eee esceeeeeseeteeeeeetteeeeees 10 iii INTRODUCTION This Court should apply the plain language of 28 U.S.C. § 1367(d) to find timely the claims of three major Southern California public agencies and their contractors, claims that five state and federal judges have now found meritorious. All four of the judges in this case who have reviewed the timing issue raised by Appellant Kern County (“Kern”) have further agreed that § 1367(d) suspended the running ofthe statute of limitations on the Respondents’ state claims while the case wasinfederal court, allowing the state limitations period to resume running after the federal court declined supplemental jurisdiction. This suspension approach to § 1367(d), adopted bythe trial court and the unanimous Court of Appeal below as the “natural interpretation,” best applies the plain language of § 1367(d) that “[t]he period of limitations for any claim . . . shall be tolled while the claim is pending andfor a period of 30 daysafterit is dismissed ....” The suspension approach also best serves the statutory purpose of enabling litigants to pursue state law claimsafter a federal court declines supplementaljurisdiction. Kern strains to interpret § 1367(d) as replacing the remainingstate limitations period with a maximum 30 day deadline, a position endorsed by a declining minority of courts and which the Court of Appeal found lacked support in the language ofthe statute and the intent of Congress. In interpreting federal law, this Court accords “great weight” to federal precedent and accordingly should look to the unequivocal decisions adopting the suspension approach of both federal courts that have analyzed and ruled on the meaning of §1367(d) — a unanimous, published decision of the Sixth Circuit Court of Appeals earlier this year, which affirmed the published decision of the Northern District of Ohio. A growing majority of state courts that have discussed the issue, including in California, also favor the suspension approach. The Fifth District Court of Appeal panel below and the Third District both published opinions supporting the suspension approach, as have the highest courts of Minnesota and Maryland. Kern’s “extension approach,” by comparison,relies ona territorial court decision and three older intermediate state appellate courts, including a fifteen year- old decision by the Second District. Kern argues that § 1367(d) is ambiguous becauseit uses the word “toll,” that recourse to legislative history is necessary, and that the Court must resolve that ambiguity by imposing the shortest possible limitations period on state law claims broughtafter a federal court declines supplemental jurisdiction. Kern errs onall three points. The federal courts and the majority of state courts, while acknowledging that the word “toll” standing alone could have multiple meanings, have hadlittle difficulty finding that the best reading of § 1367(d) is the suspension rule. This majority approach embraces suspension because (1) the word “toll” usually means suspension, (2) § 1367(d)’s text mandates tolling in all cases unconditionally, and (3) the statute uses mandatory languageto “toll” the state statute of limitations for two separate periods, both while the federal claim is pending and for 30 days thereafter. The federal courts, the Court ofAppeal, andthetrial court all have found suspensionto be theclear, plain meaning of the statute, and this Court should too. Moreover,if this Court determines there is ambiguity in the text, principles of statutory construction suggest that the Court look to California’s endorsement of the suspension approachin applyingtolling statutes. The legislative history of the Judicial Improvements Act of 1990 sayslittle about § 1367(d), and as the Court of Appeal below pointed out, Kern’s focus on the general purposeofstatutes of limitations to protect defendants is completely balanced,if not outweighed, by the interest in allowing a determination of supplemental state law claims on the merits. Finally, even if the Court were to decide its question presented in Kern’s favor, the preliminary injunction would remain proper on other groundsnot reached by the courts below, including the restarting of the statute of limitations based on Kern’s renewed enforcement effort and California Code of Civil Procedure § 355, which provides a one-year period for claimsto be refiled after a non-merits reversal in the appellate court, and thus falls within § 1367(d)’s language “unless State law provides for a longertolling period.” STATEMENT OF FACTS AND PROCEEDINGS BELOW The ultimate issue in this case is whether Kern County can ban the use of biosolids as a farm fertilizer, a recycling practice used throughout the United States, California, and even in Kern County’s largest cities. The Court of Appeal, the trial court, and a federal district court haveall ruled against Kern County on the merits on several grounds. Local governments across the country, including Respondents, are obliged as a basic public health duty and under the Clean Water Act to collect and treat wastewater from homes, businesses, and institutions, and to managethe solid byproducts, principally sewage sludge. City ofLos Angeles v. Cnty. ofKern, No. F063381, slip op. (Cal. Ct. App. Feb. 13, 2013) (“Ship Op”), at 4. Biosolids are produced by the treatment of sewage sludge to federal and state standards, resulting in a useful fertilizer product, whichis rich in plant nutrients and adds useful bulk organic matter to the soil. Encouraging biosolids recycling has long been federal andstate policy and the environmental benefits of land application are well recognized, as found bythe district court and superior court in this case. RespondentCity of Los Angeles has been recycling its biosolids at its Green Acres Farm, a remote 4,700-acre farm southwest of Bakersfield that growsfeed crops for dairy cows, for nineteen years. 1 Appellants’ App. (“AA”) 8 (928); Resp’ts App. (“RA”) 057 (49). The City contracts with Respondent Responsible Biosolids Managementto oversee the transport of the City’s biosolids to Green Acres and to manage land application there. RA 074 (48). Respondent Sierra Transport, under a contract with Responsible Biosolids Management, trucks the biosolids to Green Acres. RA 093 (95). Respondent Fanucchi conducts the farming operations. RA 089 (41). Respondent Orange County Sanitation District (“OCSD”) land applied biosolids in unincorporated Kern County beginning in 1996, and Respondent Los Angeles County Sanitation District No. 2 (“CSD No. 2”) began providing biosolids to County farmersfor fertilizer in 1994. As with the City ofLos Angeles, the biosolids generated from OCSD’s and CSD No. 2’s wastewater treatment processes meet Class A EQ standards and other Kern County requirements and have been usedasa fertilizer and soil conditioner to grow animal feed crops. RA 120 (96). RA 119 (94), 111- 112 (411). Respondent California Association of Sanitation Agencies (“CASA”) is a non-profit mutual benefit association representing over 115 cities, counties, and special districts statewide that expend tens of millions of dollars annually to recycle the majority of the biosolids generated in their communities for beneficial uses. 1 AA 5-6 (416); RA 097 (94). CASA’s members have many years of experience with successful land application and its benefits. Land application remains an indispensable option for many CASA members’ biosolids recycling programs. RA 101-102 ({16- 20). In 2006, Kern County voters passed a ballot measure (“Measure E”’) that banned use ofRespondents’ biosolids on Kern County farms. The initiative ordinance did not affect ongoing land application of biosolids by the cities in the County within their city limits, where most of the voters reside. Slip Op. at 8-10. Twenty-four days after Measure E’s July 22, 2006 original effective date, Respondents filed suit in the United States District Court for the Central District of California challenging Measure E’s validity on several federal and state law grounds. 1 AA 139. Thedistrict court entered a preliminary injunction against Measure E in November 2006, ruling that the voter initiative likely violated the Commerce Clause of the United States Constitution, was preempted by California’s Integrated Waste Management Act (“IWMA”), and exceeded Kern’s police power under the California Constitution. City ofLos Angeles v. Cnty. ofKern, 462 F. Supp. 2d 1105, 1108-1109 (C.D. Cal. 2006). The court also found that the balance of hardships tipped sharply in Respondents’ favor. /d. at 1119. In 2007 the district court granted summary judgment for Respondents on the[WMA preemption and Commerce Clause claims. City ofLos Angeles v. Cnty. ofKern, 509 F. Supp. 2d 865, 870 (C.D. Cal 2007). Amongotherfindings, the district court found that Measure E discriminated against biosolids generators located outside of Kern County and that the voters were motivated by “antagonism toward Los Angelesin particular and Southern California in general,” as evidencedbya strident anti-Southland political campaign in favor of Measure E. Id. at 885. On appeal, the Ninth Circuit ruled that Respondents lacked prudential standing to pursue their Commerce Clause claim in federal court, but expressly declined to reach the merits of that claim or the [WMA claim. City ofLos Angeles v. Cnty. ofKern, 581 F.3d 841, 849 (9th Cir. 2009). On November9, 2010, the district court declined supplementaljurisdiction, leaving Respondents to pursue their challenge in state court. 1 AA 274. On January 19, 2011, Kern County sent Respondents an enforcement notice stating that, as of the date of the notice, “you are now subject to the provisions of Measure E,” and affording Respondents “six (6) months from the date ofthis letter to discontinue the land application of biosolids.” 2 AA 413 (emphasis added). Respondents filed this action one week later on January 26, 2011, bringing claims forIWMA preemption, violation of police powerlimits, and federal and state Commerce Clause violations. 1 AA 1. The case wasfiled in Kern County and transferred by agreement of the parties to the neutral venue of Tulare County. Kern demurred to the complaint, primarily arguing that Respondents’ IWMA and police power claims were time-barred under 28 USS.C § 1367(d). 1 AA 110. The Tulare Superior Court overruled Kern’s _ demurrer, agreeing with the Second District’s 2001 opinion in Bonifield v. Cnty. ofNevada, 94 Cal. App. 4th 298 (2001), that § 1367(d) suspends the operation ofthe state statute of limitations during the pendencyofthe federal case and for 30 days thereafter, with the remaining limitations period recommencingafter the federal court declines supplemental jurisdiction. Judge Hicks wrote that the suspension approach “is consistent with the plain language ofthe statute. The court agrees with the analysis in In re Vertrue Mktg. & Sales Practices Litig.[, 712 F. Supp. 2d 703 (N.D. Ohio 2010) (“Vertrue P’)]. Althoughthereis a split in authorities, the court finds this federal case is better reasoned in adopting the suspension of the statute as opposedto the alternatives which do notcredit the clear, plain languageofthe statute.” 2 AA 514. On June 9, 2011, the trial court granted Respondents’ preliminary injunction motions. 3 AA 662. The court found that Respondents were likely to prevail on their IWMA andpolice powerclaims. The court did not reach Respondents’ federal and state Commerce Clause claims, which remain pending. 3 AA 665. Judge Hicks also found that the balance of harmsstrongly favored Respondents. 3 AA 666 (“Kern presents no evidence of any actual harm to the environment: to the air, water, or soil, as a result of LA’s continued application of biosolids. ... LA presents evidence of substantial monetary harm andthe inability to quickly adapt to alternatives. Individual Respondents present evidenceofirreparable harm consisting ofjob losses.”). Kern took an interlocutory appeal of the preliminary injunction. Kern disputed that Respondents werelikely to succeed on the merits of their preemption and police powerclaims, in part based upon Kern’s contention that those claims were time-barred by 28 U.S.C. § 1367(d). Kern did not challenge the trial court’s factual findings. The Court ofAppeal unanimously affirmedthetrial court’s ruling in a published 34-page opinion. City ofLos Angeles v. Cnty. ofKern, 214 Cal. App. 4th 394 (2013), review granted, depublished, 158 Cal. Rptr. 3d 259 (June 26, 2013). The Fifth District panel held that the Measure E biosolids ban likely was preempted by the['WMA’s recycling mandates, that Kern’s ban likely violated the regional welfare doctrine limits on local police powers, and that Respondents’ claims were not time-barred by 28 U.S.C.§ 1367(d). In weighing the competing suspension and extension interpretations of § 1367(d), Justice Wiseman wrote that “[t]he two approachesare not equally plausible readings of the statutory language” and sided with “the natural interpretation ofthis language: The statute of limitations stops running while the claim is pending in federal court and for 30 daysafter it is dismissed; then thestatute of limitations begins to run again from the point whereit left off.” Slip Op. at 18, 20. By contrast, the Fifth District found that Kern’s extension approach “is obscure and would be an obtuse way of expressing the meaning for which Kern contends. Thefact that other meaningsof‘toll’ have been identified in case law therefore sheds no light on what ‘toll’ means here. If Congress had intended the rule Kern supports, it could have written that the ‘period of limitations for any claim that would otherwise expire while it is pending or during a period of 30 days after it is dismissed shall be extended by 30 days from the time of dismissal,’ or something similar. It did not.” Jd. at 20. The Court of Appeal was also unpersuaded by Kern’s legislative intent arguments: “There is no rule that, where oneinterpretation of a statute results in a longer limitations period and anotherresults in a shorter, a court should always choose the shorter. There being no policy factor favoring either side here, the linguistic considerations discussed above carry the day.” /d. at 21. On April 22, 2013, Kern petitioned for review by this Court. On June 26, 2013, this Court declined review of the Court ofAppeal’s ruling on the WMA andpolice power claims. The Court granted review to resolve a conflict between the decision below and a 2001 Third District decision on one hand, and a 1999 decision by the SecondDistrict on the other, over the interpretation of 28 U.S.C. § 1367(d). City ofLos Angeles v. Cnty. ofKern, 158 Cal. Rptr. 3d 259 (2013). ARGUMENT I. STANDARD OF REVIEW Theparties agree that this Court’s interpretation of 28 U.S.C. § 1367(d) is a legal question subject to de novo review. In cases of statutory interpretation, primacyis placed on the text Congress enacted; courts must “presumethat [Congress] says in a statute what it means and means in a statute whatit says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-254 (1992). “Ifthe language is unambiguous,the plain meaning controls.” People v. Leiva, 56 Cal. 4th 498, 506 (2013). The question before the Court is interpretation of a federal statute, and this Court has recognized that lower federal court interpretations of federal law are persuasive and are afforded “great weight.” See, e.g., Venegas v. Cnty. ofLos Angeles, 32 Cal. 4th 820, 835 (2004). “[W]hen Congress has not prescribed a clear and definite meaning for an operative term in a federal statute, its meaning can be supplied by reference to local law.” 2 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 37:2 (7th ed. 2009). Il. RESPONDENTS’ PREEMPTION AND POLICE POWER CLAIMS ARE TIMELY UNDER28 U.S.C. § 1367(d). Kern’s analysis of § 1367(d) complicates the statute, arguing that “tolling” of the statute of limitations period meansletting it run, andifit expires during the pendency ofthe federallitigation, extending it by 30 days. Kern advocates for this interpretation on the groundthat a policy to speed the termination of lawsuits should trump the commonreading of the term “tolled.” Respondents submit that the wording of §1367(d) and federal and California precedent support applying tolling in the usual mannerofsuspending the running ofthe clock, which serves the equally, if not more,valid legislative goal of allowing state claims to be decided on the merits after supplemental jurisdiction in the federal court ends. A. The Common Meaningof “Toll” Is Suspend or Interrupt. Kern contends “tolled,” standing alone, can take on a myriad of different meanings, making § 1367(d) ambiguous. But viewing the word “tolled” in isolation is contrary to well-established principles of statutory interpretation placing primacy onstatutory context (see § II.B, infra). Moreover, the term “toll” is in fact commonly understood in the federal courts, California, and elsewhere to “stop the clock.” This widely accepted meaning oftolling is decisive of the question before the Court. The consensus meaning ofthe term “toll” is to suspend orinterrupt the operation of the statute of limitations. See, e.g., Turner v. Kight, 406 Md. 167, 181 (Md. 2008) (the suspension approachis the “more commonly applied conception oftolling [and] is correct”). For example, Black’s Law Dictionary defines a “tolling statute” as “a law that interrupts the running of a statute of limitations.” Black’s Law Dictionary at 1525 (8th ed. 2004) (emphasis added). See also Bryan A. Garner, A Dictionary ofModern Legal Usage 884 (2d ed. 1995) (“in the context oftime limits — especially statutes of limitation — fol] means ‘to abate’ or ‘to stop the running of(the 999statutory period)’”). Furthermore, the standard dictionary definition of “toll” is “to suspendor interrupt (as a statute of limitations).” Random House Webster’s Dictionary 1991 (2d ed. 1998). Manycasesalso articulate the suspension definition oftolling, including the United States Supreme Court decision relied on heavily by Kern, Chardon v. Fumero Soto, 462 U.S. 650, 652 n.1 (1983) (using ‘tolling’ to mean that, during the relevant period, the statute of limitations ceases to run”). See also, e.g., United States v. Ibarra, 502 U.S. 1, 4.n.2 (1991) (per curiam)(“Principles of equitable tolling usually dictate that _ when a time barhas been suspended andthenbeginsto run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped.”); Heard v. Sheahan, 253 F.3d 316, 317 (7th Cir. 2001) (“Tolling interrupts the statute of limitations after it has begun to run... .”); Sterlin v. Biomune Sys., 154 F.3d 1191, 1195 n.8 (10th Cir. 1998) (“We note that 309the term “tolling” means ‘to suspend or stop temporarily ... .””) (citations omitted). Principles of statutory interpretation and federalism, particularly in the context of interpreting the runningofstate statutes of limitation, allow this Court to also look to California law in interpreting the meaning and operation of § 1367(d). This Court directly endorsed tolling as suspension under California law in its 1998 decision in Cuadra v. Millan: “Clarity of thought will be promoted by reserving the use of the phrase, ‘the statute of limitations is tolled,’ for instances in which the runningofthe statute is temporarily suspended by a specified condition--e.g., the plaintiff's 10 minority ([Code Civ. Proc.] § 352) or incarceration (id., § 352.1), the defendant's absence from thestate (id., § 351), an injunctionor stay of the action (id., § 356), or a state of war (id., § 354)--and will resume whenthat condition is lifted.” 17 Cal. 4th 855, 864 (1998), overruled in part on other grounds, Samuels v. Mix, 22 Cal. 4th 1, 16 n.4 (1999). Similarly, this Court’s 1991 decision in Woods v. Young, cited by the Third District’s Bonifield decision adopting the suspension approach, stated that “[t]olling may be analogized to a clock that is stopped and then restarted. Whatever periodoftime that remained whenthe clockis stopped is available when the clock is restarted, that is, when thetolling period has ended.” 53 Cal. 3d 315, 326 n.3 (1991) (interpreting the relationship between the State’s 90 day notice requirement for medical malpractice suits and the statute of limitations for malpractice). Earlier this year, in the course ofinterpreting the meaning of a Penal Code provision that tolled the running of term of probation, this Court “conclude[d], as we have previously, that the most common understanding of the term ‘toll’ in a legal context is ‘to stop the running of; to abate ... .”” Leiva, 56 Cal. 4th at 507 (quoting Black’s Law Dictionary). The Court reasonedthat “[i]n light of the overwhelming weight of authority that defines ‘toll’ in the legal context as to ‘abate’ or ‘stop the runningof,’ rather than ‘to extend,’ we reject the claim that ‘toll’ unambiguously means to ‘extend.’ ... We remain convinced that the commonsense,plain meaningof‘toll’ in the context of legal time limits is ‘to abate’ or ‘to stop the running of.’”). Id. 508-09." "In fact, long before § 1367(d) was passed, California applied equitable tolling to suspend the running ofthe limitations period for state claims while a plaintiff's case was pending in federal court. See Addison v. State ofCal., 21 Cal. 3d 313, 322 (1978) (noting suspension oflimitations period avoided forfeiture of claims and resulted in minimal uncertainty or delay). Kern, AOBat 17, incorrectly looks to this Court’s 1977 opinion in Woodv. 1] The Court should apply the nearly universally accepted meaning of toll as suspendin its analysis of § 1367(d), which leads to the adoption of the suspension approach adopted by mostcourts. B. The Plain Languageof 28 U.S.C. § 1367(d) Requires Suspension of the Statute of Limitations. Understanding the common meaningof “toll,” the interpretation of § 1367(d) to suspend the runningofthe statute of limitations followseasily. The context of the operative language of the section further compels this conclusion. The full text of § 1367(d) supplies the necessary context: Theperiod oflimitations for any claim asserted under[federal supplemental jurisdiction], and for any claim in the sameactionthatis voluntarily dismissed at the same timeor after the dismissal of the claim under [federal supplemental jurisdiction], shall be tolled while the claim is pending andfor a period of30 days after it is dismissed unless State law provides for a longertolling period. 28 U.S.C. § 1367(d) (emphasis added). Kern finds ambiguity in the word “tolled” standing alone. However, long-standing maximsofstatutory interpretation provide that the meaning of individual words derives from their specific statutory context. See, e.g., Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006) (“[A] word is known by the companyit keeps — rule that is often wisely applied where a word is capable of many meaningsin orderto avoid the giving of unintended Elling Corp., 20 Cal. 3d 353, 359, which heldthat the factors for equitable tolling were not metin that case and recognized that “in the absence of a statute” the common law ordinarily does not toll the running ofthe statute of limitations on a claim that is dismissed without prejudice andis later refiled. This principle is unremarkable and inapposite, because of course here there is a statute that directs tolling. Moreover, the following yearthis Court decided Addison, finding tolling appropriate in the specific context here — a federal court’s non-merits dismissal of state law claims. 12 breadth to the Acts of Congress.”) (internal quotations omitted); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In ascertaining the plain meaning ofthe statute, the court mustlookto the particular statutory languageat issue, as well as the language and design ofthe statute as a whole.”). The Court of Appeal recognized this fundamentalprinciple, as have other cases that analyzed the text of § 1367(d). Slip Op. at 20 (“The fact that other meaningsof‘toll’ have been identified in case law therefore sheds no light on what ‘toll’ means here.”) (emphasis in original); Goodman v. Best Buy, 777 N.W.2d 755, 759 (Minn. 2010) (“Goodman Ir’) (“‘tolled’ has a plain meaningin the statute that can be resolved by examining the specific context in whichit is used.”). Accordingly, the appropriate inquiry is not what “tolled” means“in different contexts,” but what it means here. See AOB at 2. As the Court of Appeal unanimously held, the “natural interpretation” of § 1367(d), applying all the terms and commandsofthestatute, is to suspend the running of the limitations period for state law claims during the pendency of the claims in federal court and for 30 days afterward. Underthis suspension approach, the time remaining onthe state limitations period whenthe federal claims were filed remainsavailableto a plaintiff after the federal claims are dismissed. The 30 day provision, in turn, exists to ensure a minimum period for plaintiffs with federal and state claims whofile a federal suit with little or no time remaining ontheir state limitations period that is suspended during the federal action. Goodman II, 777 N.W.2dat 761. The context that supports tolling as suspension includes the mandatory wording requiring tolling on all statutes of limitations that are running whenthesuit is filed, the addition of 30 days moretolling as a safety valve, and the unsuitability of § 1367(d)’s language to an extension approach, which could have been achieved in a much moredirect and simple manner. 13 1. Section 1367(d) Applies Unconditionally to All Supplemental State Law Claims. As Kern would haveit, § 1367(d) operates only if the state statute of limitations expires during the pendencyofthe federal case (in that event providing 30 daysto file in state court after dismissal of a federal case), and is meaningless ifthe state statute of limitations does not expire during that time. This is contrary to the mandatory language in § 1367(d)that “[t]he period oflimitations . . . shall be tolled.” 28 U.S.C. § 1367(d) (emphasis added). This commandis unconditional. See Gutierrez De Martinez v. Lamagno, 515 U.S. 417, 440 (1995) (use of “shall” in statute meansits application is unconditional); Vertrue I, 712 F. Supp. 2d at 724 (“Onits face, Section 1367(d) must havea tolling effect on all supplemental state law claims.”). Once the 30 days after dismissal have passed,the limitations period starts to run again, and the claimant has the same numberofdays to file as the claimant did whenthe tolling began. The effect is the same in every case. Asthe first federal appellate court case to analyze the text likewise recognizedearlier this year, “[t]he extension approach fails to give any operative effect to § 1367(d) in a numberofcases in which the state statute of limitations does not expire during the course offederallitigation.” In re Vertrue Mktg. & Sales Practices Litig., 719 F.3d 474, 481 (6th Cir. 2013) (“‘Vertrue IT’). Kern is forced to adopt the position that § 1367(d)tolls the running of statutes of limitations in somecases and not others becauseofits unorthodox definition of toll as meaning “shall not expire” rather than “suspend”or “interrupt.” By contrast, the courts below and the growing majority ofjudges agree that the statute acts uniformly to interrupt the 14 running ofall state statutes of limitations until 30 days after supplemental jurisdiction is declined.” Kern’s effort to substitute “shall not expire”for “shall be tolled” impermissibly attempts to alter the language ofthe statute and has scant support. AOB at 11. Kern cites only a sentence from a New Jersey intermediate appellate court opinion that does not support its proposition. Id. (quoting Berke v. Buckley Broadcasting Corp., 821 A.2d 118, 123 (N.J. Super. Ct. App. Div. 2003)). Berke did not define the phrase “shall be tolled,” or use Kern’s phrase “shall not expire,” but instead expressly refused to follow § 1367(d)’s plain language. 821 A.2d at 123 (opining that § 1367(d)is not a “‘true’ tolling statute .. . [d]espite its ambiguous use of the word ‘tolling’” because “wedo not believe that the federal statute intends a result that would permit a gross protraction ofthe limitations period”). This Court should not look to Berke, but instead to the plain meaning ofthe phrase in its statutory context. Kern arguesthat interpreting § 1367 to uniformly apply the common meaning oftolling as suspension, whichis contrary to having the statute of limitations expire, somehow “bootstraps” the desired result in statutory interpretation. AOB at 11. To the contrary, it is Kern that does not address the accepted meaningoftoll that fits better within the context of § 1367 in its rush to argue that there is a Congressional preference to terminate state supplemental claims 30 days after federal declination ofjurisdiction. *The simplicity that Kern claims for the extension approach overthe suspension approach does not exist, because for each claim the statute of limitations still has to be calculated in order to determine whetherit has expired or not during the time the case is in federal court. 15 2. Section 1367(d) Tolls the Limitations Period for State Supplemental Claims While They Are Pending in Federal Court. Kern’s extension approach would require a plaintiff to file a state court complaint within 30 days of dismissal from federal court “when,as in this case, a state statute of limitations expires while a supplementalclaim is pending in federal court.” AOBat 1-2 (emphasis added). But § 1367(d) requires that “[t]he period of limitations . . . shall be tolled while the claim is pending”in federal court. 28 U.S.C. § 1367(d) (emphasis added). If the state limitations period is tolled while the federal case is pending,it cannot “expire” during that time. Indeed, Kern agrees that § 1367(d)’s purpose wasto “prevent the limitations on . . . supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court.” AOBat 1, 5 (citing Jinks v. Richland Cnty., 538 U.S. 456, 459 (2003)). Kern also concedesthat, at the very least, “tolling” means that “during the relevant period, the statute of limitations ceases to run.” AOBat9, citing Fumero Soto, 462 U.S. at 652 n.1 (defining “tolling” to mean “the statute of limitations ceases to run,” but noting that, depending onstatutory context, one ofthree “tolling effects” is possible, see § II.D, infra). Kern’s argumentis inconsistent internally and with the statute’s text. Beyondits incompatible premise and terminology, Kern’s argument also ignores exactly whatis tolled and whenthat tolling occurs. Section 1367 tolls the “period oflimitations while the claim is pending andfor a period of 30 daysafter it is dismissed.” (Emphasis added). “Because this language designatesa period oftime, it must refer to an ongoing occurrence,” and “can reasonably be understood only as intending a suspension.” Goodmanv. Best Buy, 755 N.W. 2d 354, 358 (Minn. Ct. App. 2008) (“Goodman I”), aff'd, Goodman IT, 777 N.W. 2d at 759. Kern’s constructis that “shall be tolled” does not stop the runningofthe statute of 16 limitationsat all; the statute is not tolled as the word is usually understood, and instead if the statute expires while the claims are in federal court, then the tolling occurs, and 30 daysis allowed to bringsuit. In effect, Kern asks this Court eitherto read “the period” and “while the claim is pending”out ofthe statute, or to judicially amendthestatute to read “the expiration ofthe statute of limitations . . . shall be extended.” Neither is a sensible reading of the actual words that Congress chose, and the Court of Appeal agreed. Slip Op. at 20. The term “toll,”as it is used in its context within § 1367(d), is only susceptible to a single meaning — the statute of limitations clock is temporarily stopped. 3. Section 1367(d) Tolls Claims Over Two Periods, Rather Than Merely Imposing a Thirty Day Maximum Tolling. Kern’s argument for a maximum (rather than minimum) 30 day periodto refile supplemental state law claims ignores that § 1367(d) mandates twotolling periods. Under § 1367(d), the statute of limitationsis tolled during two distinct periods: (1) while the claim is pending in federal court, “and” (2) for a 30 day period after the claim is dismissed. Thatis, the statute first ensures that state law claims remain alive while pending in > This Court hasrejected a nearly identical argument in an analogous context where claimsare “tolled” during a prior proceeding. See Pearson Dental Supplies v. Sup. Ct. ofLos Angeles Co., 48 Cal. 4th 665, 675 (2010) (“The only way to make sense of defendant’s position is to understandit as asserting that whatis being tolled is not the running of the one-year contractual limitations period, but the contractual one-year deadline itself. . .. What makesthis interpretation untenable is not only that it is at variance with the common understanding of the term ‘tolling,’ but also thatit contradicts the express language of [Code Civ. Proc.] 1281.12 thattolling starts ‘from the date the civil action is commenced.’ This language establishes that what is being tolled is the running of the contractual limitations perioditself, as plaintiff argues. ... [T]he endofthetolling period simply meansthat the contractual limitations clock began to run again, not that the limitations period ended.”). 17 federal court, and then confers a minimum 30 dayrefiling period to accommodate plaintiffs who initially commencean action near the end of the limitations period. GoodmanIT, 777 N.W. 2d at 761. A key contradiction in Kern’s position is that Kern asks this Court to hold that the state statute of limitations period continues running while the federal case is pending because Kern’s view requiresthat the statute “expires” while the federal claim is pending, and then can only receive a 30 day extension. AOBat 11. Kern’s imposition of a maximum 30 day refiling window impermissibly negatesthefirst tolling period in § 1367(d), and renders the word “tolled” superfluous. Every word ofthe statute " should be given effect. Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979); Leiva, 56 Cal. 4th at 506 (“[W]heneverpossible, significance must be given to every word[in a statute] in pursuingthe legislative purpose, and the court should avoid a construction that makes some wordssurplusage.”) (internal citations and quotations omitted). Under Kern’s view, Congress would not have neededto include a “toll” term at all, but rather would have only needed to extend any covered claim by 30 days, and nothing more. As the Court of Appeal recognized below,“[i]f Congress had intended the rule Kern supports,it could have written that the “period of limitations for any claim that would otherwise expire while it is pending or during a period of 30 days afterit is dismissed shall be extended by 30 days from the time of dismissal,’ or something similar. It did not.” Slip Op. at 20. Kern’s arguments — styled as statutory interpretation — are in fact advocacyfora different statute. 4. The Statute as Written by Congress Is Amenable Only to the Suspension Approach. For the above reasons, individually and combined, the context of § 1367 defines tolling to mean suspension,or stopping the clock. The terms “toll” and “suspend”are easily interchangeable within thestatute. 18 One cannot, however, substitute “extend”for “toll”? and maintain the statute’s functionality. The Court ofAppeal attempted this exercise and found the result was an “obscure” and “obtuse”statute that Congress would not have enactedif it intended to adopt the extension approach. Slip Op. at 20. The Minnesota Supreme Court in Goodman II likewise found the extension approach depended on “creating an ambiguity where noneexists by reading missing wordsor conditions into the statute. Such reasoning would make any statute ambiguous.” Goodman II, 777 N.W.2d at 760. The suspension approachis the only interpretation faithful to all of the statutory language of § 1367(d). Because the text of the statute is clear, the Court need look no further in affirming the Court of Appeal.’ * Kern alsocites a series ofstatutes using “suspended”or similar terms to argue that Congress intends the suspension approach only whenit uses such language, not “toll,” in a statute. AOB at 11-12 n.5. This haslittle bearing on § 1367(d) and Kern’s authority does not support its position. The “suspension”statutes Kern cites either directly use or have been applied using the synonymousterm toll. See 50 U.S.C. app. § 526(a) (“Tolling of statutes of limitation during military service”) (emphasis added); Minn. Mining & Mfg. Co. v. N.J. Wood Finishing Co., 381 U.S. 311, 316 (1965) (finding 15 U.S.C. § 16(i), which states “the running ofthe statute of limitations . . . shall be suspended during the pendency[ofanycivil or criminal proceeding instituted by the United States underantitrust laws],” “tolls the statute of limitations set out in § 4B from the timesuitis instituted by the United States regardless of whethera final judgment or decree is ultimately entered”) (emphasis added). The Court of Appeal here noted that Congress would have omitted “tolled” if it meant extension. Slip Op. at 20. Other statutes likewise suggest that Congressis just as, if not more, likely to eschew the use of “tolled” whenit intends to “extend.” See, e.g. 28 U.S.C. § 2415(e) (“In the event that any action to whichthis section applies is timely brought andis thereafter dismissed without prejudice, the action may be recommenced within one year after such dismissal, regardless of whether the action would otherwise then be barred by this section.”) (emphasis added); 49 U.S.C.§ 11705(d) (“[t]he limitation periods under subsections (b) and (c)ofthis section are extended for 90 days from the timetherail carrier beginsa civil action under subsection (a) of this section) (emphasis added); 15 U.S.C. 19 C. Courts Interpreting “Tolling” Within the Text of § 1367 Have Confirmed the Suspension Approach. The commondefinition of“toll” as “suspend”andthe textual analysis supporting the suspension approach are endorsed by the weight of authority, including decisions by a federal court of appeals, a federal district court, and the highest courts oftwo other states that address the text of § 1367(d). In particular, the federal court decisions merit “great weight” in this Court’s analysis. See, e.g., Venegas, 32 Cal. 4th at 835; Barrett v. Rosenthal, 40 Cal. 4th 33, 58 (2006) (“While we are not bound by decisions of the lower federal courts, even on federal questions, they are persuasive and entitled to great weight.”).° Though not discussed by Kern,the U.S. Court of Appeals for the Sixth Circuit — the only federal appellate court to analyze the statute’s text — in April 2013 affirmed the suspension approach interpretation of § 1367(d). Vertrue I, 719 F.3d at 481 (“We are persuaded that the suspension approach properly gives effect to both § 1367(d) and the state statute of limitations.”). The court affirmed the ruling ofthe district court, which held that “[t]he suspension approachis the only approachthat comports with the plain meaning of the statute.” Vertrue I, 712 F. Supp. 2d at 724 (“In orderto give effect to the plain meaning and mandatory nature § 1691e(f) (“[t]hen any applicant who has beena victim of the discrimination whichis the subject of such proceeding or civil action may bring an action underthis section not /ater than one yearafter the commencement of that proceeding or action.”) (emphasis added). > Some ofthis Court’s decisions have suggestedthat a factor in the weight to be accorded federal authority in interpreting federal statutes is the numberof federal courts adopting a position. See, e.g., Coral Construction, Inc. v. City and Cnty. ofSan Francisco, 50 Cal. 4th 315, 329-30 (2010). (“While the lower federal courts' decisions do not bind us, we give them “great weight” when they reflect a consensus... .”). The Sixth Circuit and the Southern District of Ohio in Vertrue II and Vertrue I represent such a consensus,as all four federal judges to analyze the text of §1367(d) have agreed on the suspensioninterpretation. 20 of the language, this Court finds that [the] extension approach must be rejected.... The only reading . . . that gives meaningtoall of the words chosen by Congressis the suspension approach.”’). The suspension approachis also favored by the majority of appellate decisions in California and other states. The Fifth District Court of Appeal (andtrial court) in this case, Third District Court of Appeal, the highest and intermediate appellate courts of Minnesota, and the highest court of Marylandall have rejected the extension approachin favorofthe suspension approach. Jd.; Slip Op. at 17-21; 2 AA 514 (trial court’s overruling of Kern’s demurrer); Bonifield, 94 Cal. App. 4th at 303; Goodman I, 755 N.W.2d at 358-59, aff'd, GoodmanIT, 777 N.W.2d at 761-762; Turner, 957 A.2d at 992. Kern counts no federal court decisions disavowing the suspension approachin favor of Kern’s extension approach. Kern relies on territorial court decision and three dated decisions of intermediate state appellate courts, including a fifteen-year-old Second District decision decided without the benefit ofjurisprudence on point. AOBat 6; Kolani v. Gluska, 64 Cal. App. 4th 402, 410-411 (1998); Huang v. Ziko, 511 S.E. 2d 305, 308 (N.C. Ct. App. 1999); Berke, 821 A.2d at 123; Zhang Gui Juanv. Commonwealth, No. 99-032, 2001 WL 34883536 (N.ML.I. Nov. 19, 2001). These decisions (all over a decade old) based their rulings on policy grounds divorced from the statutory language. Kolani, 64 Cal. App. 4th at 410-11 (extension approachsufficient to avoid forfeiture of claims); Huang, 511 S.E. 2d at 307 (N.C. Ct. App. 1999) (relying on “the policy in favor of prompt prosecution of claims”); Berke, 821 A.2d at 123 (despite the statutory language,“we do not believe that the federal statute intends a result that would permit a gross protraction of the limitations period”). The Third District in Bonifield specifically considered and refuted Kolani in a decision just three years later, as did the Fifth District decision under 21 review here, and Kolani has not been favorably cited since on § 1367(d) grounds. Slip Op. at 17-21 (adopting the “natural interpretation”of § 1367(d)); Bonifield, 94 Cal. App. 4th at 303-04 (2001) (“Tolling may be analogized to a clock that is stopped and then restarted. Whatever period of time that remained whenthe clock is stopped is available when the clock is restarted, that is, when the tolling period has ended.”) (internalcitation omitted). D. The Supreme Court’s 1983 Fumero Soto Opinion Does Not Change the Meaningof Tolling or the Interpretation of § 1367(d). Throughout its brief, Kern heavily relies on dicta in a single footnote from the U.S. Supreme Court decision in Fumero Soto, whichstatesthat, depending on context, a tolling provision can have one ofthree possible “tolling effects.” 462 U.S. at 652 n.1.’ Kern extrapolates from this general statement to argue that, in § 1367(d), “use of the phrase ‘shall be tolled’ does not necessarily meanthat that plaintiff can use the unexpired portion of the statute once tolling ends.” AOB at 9. Kern’s argument fails because Fumero Soto does not bear on the meaning oftolling in § 1367(d) and cannot insert ambiguity into § 1367(d) where none exists. Moreover, it © There are a handful of additional reported federal and state cases that apply 28 U.S.C. § 1367(d), using either the extension or the suspension approach, but those decisions lack any meaningful discussion ofthe issue. ’ The Fumero Soto footnotein its entirety reads: “This opinion uses the word ‘tolling’ to mean that, during the relevant period, the statute of limitations ceases to run. ‘Tolling effect’ refers to the method of calculating the amountoftimeavailable to file suit after tolling has ended. Thestatute of limitations might merely be suspended;if so, the plaintiff mustfile within the amountoftimeleft in the limitations period. If the limitations period is renewed, then the plaintiff has the benefit of a new period as long as the original. It is also possible to establish a fixed period such as six months or one year during whichthe plaintiff may file suit, without regard to the length of the original limitations period or the amount of time left when tolling began.” Jd., 462 U.S. at 652 n.1. 22 does not yield Kern’s preferred result; if anything, Fumero Soto supports suspension, consistent with California law. At the outset, Fumero Soto has nothing to say regarding the meaning of “toll” within § 1367. Fumero Soto predated the passage of § 1367 and thus did not considertolling in that statutory context. Its footnote’s explanation of different possible effects of tolling did not assert that any individual tolling statute is amenable to all of them. Moreover, Fumero Soto did not even involve the same issue Congresslater addressed in § 1367(d), i.e., tolling of state law claimsafter a non-merits dismissal from — federal court. Rather, there the Supreme Court examined whetherthe pendencyofa class action where classcertification was ultimately denied either suspended or renewedthe limitations period for putative class membersto file individual actions under 42 U.S.C. § 1983. Thelist ofpossible “tolling effects” in Fumero Soto — suspension, renewal, and annulment— also provides no help to Kern. Notably,it excludes Kern’s preferred extension approach. 462 U.S.at 652 n.1. Indeed, the effects of the options would be the same onall claims. Fumero Soto does not endorse any conditional or selective application principle, whichis at the heart of Kern’s extension approach. In that way, Fumero Soto is consistent with § 1367(d) which, as discussed above, applies equally to all state law claims where federal courts decline supplemental jurisdiction. Kern’s insistence that 30 days is enoughtimeto refile state claims more closely resembles the annulmentor substitution example offered in Fumero Soto. But no court has endorsed that approach. AOBat 9; Vertrue I, 712 F. Supp. 2d at 723 (“It does not appear that any court has adopted that approach [annulment] and the Court finds that the statutory language cannotfairly be read to impose such a dramatic result... . This Court finds that this reading is wholly inconsistent with the purpose of the statute, whichis to avoid the forfeiture of state law claims.”). No party 23 claims § 1367(d) renewsthestate statute of limitations. Thus, the only viable tolling effect among the Fumero Soto options is the same yielded by the plain text of § 1367(d) — suspension. Finally, the actual tolling analysis in Fumero Sotorelies onstate tolling rules to interpret state statutes of limitations, which in California means suspension. See § II.A, supra. Fumero Soto reiterated that because the timeliness of § 1983 civil rights claims is governedbystate statutes of limitations, and tolling is interrelated with the length ofthe limitations period, the state’s tolling rules must be borrowedas well. Likewise, § 1367(d) is implicated only whenstate law claims remain andstate statutes of limitations govern; it is appropriate to interpret § 1367(d)in light of the state court’s tolling principles. Kern points to nothing in § 1367 or Fumero Soto preempting California’s clear understanding oftolling as suspension to ensure no state law claim is lost pending a related federal court action including that state law claim. | Fumero Soto’s solicitude for state law on tolling and federalism principles support reliance on California’s interpretation oftolling as suspension in applying-§ 1367, as the Second District did in Bonifield. AOBat 10 n.3; Bonifield, 94 Cal. App. 4th at 303. Kern’s criticism of looking to California tolling law has no doctrinal support. In addition to federalism, federal courts have long lookedto state law to assist in interpreting terms of federal statutes. See, e.g., Marcus v. Director, Office if Workers’ Comp. Programs, 548 F.2d 1044, 1047 n.4 (D.C. Cir. 1976) (“Where a [federal] statute fails to define one ofits operative terms, andits legislative history cannot dispel whatever reasonable doubt exists as to the proper meaning of the term, a court must assume, in the absence of any applicable federal commonlaw,that the legislature intended for local law to supply the meaning.”). And even if Kern were correct that Bonifield should have looked exclusively to federal law, the federal cases interpreting 24 the language of § 1367(d)also follow the suspension approach. Suspension is the uniform result, and this Court should uphold the same conclusion. E. Kern’s Policy Arguments Do Not Justify a Departure from the Suspension Approach. Kern’s foray into the legislative history and goals of § 1367(d) and the Judicial Improvements Act of 1990 yieldslittle for Kern’s extension approach and showsequal,ifnot more, policy favoring the preservation of state law claims after supplementaljurisdiction is declined. As a threshold matter, the “natural meaning” of § 1367(d) obviates any need for recourse to legislative history and policy arguments. “[S]tatutory languageis generally the mostreliable indicator oflegislative intent.” Hassan v. Mercy American River Hospital, 31 Cal. 4th 709, 715-16 (2003). Unsurprisingly, the legislative history and policies underlying §1367(d) support the plain meaning suspension approach. . Kern’s position that “the Court is free to adopt the statutory interpretation that best promoteslegislative intent” is incorrect.2 AOBat 2. * Kern suggests that this Court ignore the actual holdings of the cases applying the suspension approach, which werefaithful to the statutory language, and instead engage in policy-making. As it has many times before, this Court should decline such an invitation. See, e.g., Ire C.H., 53 Cal. 4th 94, 108 (2011) (“The question before us, however, is one of statutory construction of two provisions with a plain meaning—not one of policy choice. Our holding must be based on how sections 731(a)(4) and 733(c) are written, not on our view of what could or should have been enacted. Needlessto say, the Legislature is free to reconsider the policy set out in the current statutes if it wishes to do so.”) (internal citations omitted). Moreover, Kern misrepresents the suspension cases, which in dicta merely acknowledged the extension approach comports with somepolicy considerations, but did not endorse it. See Slip Op. at 21 (noting “t]he law does encourage promptfiling of clams, but it balances that concern with a concern for ensuring that meritorious claims have their day in court,” and finding “no policy factor favoring either side”); Bonifield, 94 Cal. App. 4th at 304 (stating an “additional 30 days may not be necessary”forearly filed federal actions comparedtoactionsfiled at the end ofthe limitations 25 Legislative intentis first and foremost informed by the text Congress actually used, and whenthat text reflects a plain meaning, the interpretive inquiry ends. Jn re C\H., 53 Cal. 4th at 107 (“[O]nly whena statute's language is ambiguousor susceptible of more than one reasonable interpretation may weturn to extrinsic aids to assist in interpretation. If the text reflects a plain meaning, we need go no further.”) (internal citations omitted); see also Gemsco, Inc. v. Walling, 324 U.S. 244, 260 (1945) (“The plain words and meaningofa statute cannot be overcomebya legislative history ....”). As discussed above, Kern’s argumentthat the word “tolled” in isolation may have multiple meanings does not undothe plain meaning of Congress’text. In any event, significant legislative history and policy considerations of § 1367(d) favor the suspension approach. First, Kern relies exclusively on a brief statement from the Senate Report on the Judicial Improvements Act of 1990 — an enactment covering eighttitles — as articulating the “goal” of § 1367(d) to be the “just, speedy, and inexpensiveresolution ofcivil disputes.” AOBat 12-13. Of course, this general goal speaks to the Act as a whole. Kern then attempts to read out the “just . . . resolution of claims” in focusing exclusively on the “speedy . . . resolution of claims.” But Kern neglects to mention House Report No. 101-734, which addresses § 1367(d) itself and states that its “purpose is to prevent the loss of claims to statutes of limitations wherestate law might fail to toll the running ofthe period of limitations while a supplemental claim was pending in federal court.” H. Rep. 101-734, at 30 (1990), reprinted in 1990 U.S.C.C.A.N.at 6876. Likewise, in upholding § 1367(d) against a constitutional attack, the U.S. Supreme Court has explained that § 1367(d) was passed “[t]o prevent the period, yet concluding “[b]y no stretch of the imagination can it be said that an additional 30 days unduly compromisesthe policy in favor of prompt resolution of legal claims”). 26 limitations period on . . . supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court.” Jinks, 538 U.S.at 459. The suspension approach is most consistent with the goal of “prevent[ing] loss of claims,” because its longer period provides greater protection of plaintiffs’ claims after dismissal from federal court. Leadingtreatises also recognize that the purpose of § 1367(d) is to preservestate law claims. “The purpose of § 1367(d) is clear and salutary. It protects plaintiffs who choose to assert supplemental state-law claims in a federal action.” 13(d) Charles Alan Wrightet al., Federal Practice and Procedure § 3567.4 (3d ed. 2008). Indeed,“the statute shows a preference for allowing supplemental state claims to be heard in state court.” 16 James Wm. Moore, Moore’s Federal Practice § 106.66[3][C] at 106-103 (3d ed. 2013). Kern’s suggestion that an explicit goal of § 1367(d)is to avoid delay is simply not echoedin the legislative history of the section, much lessis it an overriding goal which requires a view contrary to the plain meaning suspension approach to §1367(d). In fact, Kern’s extension approach discouragesdiligent plaintiffs, because early filing in federal court is in effect punished by a loss of the remaining timein the limitations period,to be replaced by only 30 days. In contrast, the truly dilatory plaintiff, who waits to file its first suit in federal court until end of the state claim limitations period, enjoys the benefit of the full state law period. The hypothetical argumentthat the suspension approach would lead to “excessive delays”is unrealistic. AOB at 15. The only reason there would be significant time left under the statute of limitationsis if the federal action were filed early in the accrual period. Kern’s theory that a plaintiff whofiles its claim quickly in federal court, using little of the state limitations period, would then wait until nearly the end ofthe limitations period after supplemental jurisdiction is declinedto refile in state court is 27 unlikely to be borne out in practice. Indeed,it is contradicted by the record in this case (which Kern ignores), where Respondents promptly filed their state and federal claims in both federal and state court, with only 102 combined daysoftheir three-year statute of limitations having run. Moreover, Kern’s professed concern about delay misconstrues the language of the Senate Report upon whichis it based, which concerns costs and specifically how delays contribute to costs. AOBat 16 (referring to the “plague[]” of“the costs ofcivil litigation, and delays that contribute to those costs ....””). The suspension approach doesno violenceto this notion, as during the period of so-called “delay” there is no pending lawsuit, and therefore no contribution to judicial costs. Kern’s approach on other the hand would encourage waste, as in this case where it would have forced Respondents to file a new state court action before knowing whether and when Kern County would seek to enforce Measure E. Kern’s facile assertion that filing a new complaintin state court is “ministerial,” AOB at 13, ignorestherealities oflitigation involving large public agencies and multiple parties, particularly in the uncommon circumstances here where Respondents had prevailed on the merits of multiple claims, were dismissed from federal court on unusual standing grounds, retained a successful federal claim to be decided anewin state court, and hoped for non-judicial resolution of the matter. Authorizing, organizing and staffing major litigation among multiple large government agencies, private parties, and a trade association is a big undertaking, often requiring decisions made by government boardsat regularly-held public meetings, which would be difficult to accomplish in 30 days under any circumstances. Kern also argues that the extension approachis neededto further the general goal of statutes of limitations to “protect defendants from [] stale claims,” and to “enable defendants to marshal evidence while memories 28 and facts are fresh... .” AOB at 15-16. However, this policy to protect defendants from stale claims does not apply wherea prior action has been filed, because the defendant is already on notice of the claims. See Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974) (because of notice of © claims provided byfiling of the class, suspension of runningofstatute of limitations for individual claims by membersof a class that is notcertified “is in no way inconsistent with the functional operation ofa statute of limitations”); Lewis v. Super. Ct. ofLos Angeles Cnty., 175 Cal. App. 3d 366, 375-76 (1985) (“purposeofstatutes of limitations — to protect defendants from prejudices resulting from stale claims — does not operate to compelstrict application of the statute where the plaintiff has diligently acted so as to provide the defendant with promptnotice of the claim’’); Collier v. City ofPasadena, 142 Cal. App. 3d 917, 925 (1986) (“So long as the two claimsare based on essentially the sameset of facts timely investigation of the first claim should put the defendantin position to appropriately defend the second. Onceheisin that position the defendant is adequately protected from stale claims and deteriorated evidence.”’). Accordingly, the suspension rule does not prejudice defendants, and tellingly Kern does not allege any prejudice in this case. Kern’s own authority admits that “[d]efendant receives notice of the claims, from the filing and service of the federalsuit,” and “[d]efense is not prejudiced, since defendant,if diligent, will interview witnesses and gather evidence to meetthe claimsin the federal suit.” Kolani, 64 Cal. App. 4th at 409. In sum, Respondents timely filed their state claims, and Kern has identified no prejudice it has suffered as a result of the Court of Appeal’s ruling, other than it must defend Measure E on the merits. 29 F. Respondents’ [WMAandPolice Power Claims Are Timely on Additional Grounds Which the Courts Below Did Not Reach or Decide. Regardless of whether the Court follows the suspension approach or Kern’s extension approach, Respondents’ claims are timely and the preliminary injunction may be upheld on other grounds raised by Respondents and briefed by the parties, but not reached by the courts below. See 2 AA 392-95. Accordingly,if the Court does not simply affirm the decision below, at most it should remand the case for consideration of these other grounds. Asa threshold matter, Kern’s timeliness argument should notprevail becauseit is not an appeal of the preliminary injunction entered bythetrial court, but rather is an impermissible interlocutory appeal of a separatetrial court demurrer ruling.” Next, § 1367(d) preserves “[s]tate law that provides for a longertolling period.” In California, Code of Civil Procedure § 355 provides a longer period. Under that provision, Respondents’ claims are timely if filed within one year after reversal of a judgment forplaintiffs if that reversal is other than on the merits. Since the Ninth Circuit’s reversal became effective upon issuance of the mandate on June 4, 2010 pursuant to Federal Rule ofAppellate Procedure Rule 41, and Respondentsfiledthis state court action before June 4, 2011, the actionis timely. In addition, neither court below addressed Respondents’ argument that their claims accrued on January 19, 2011. On that date, Kern first ” See CodeCiv. Proc. § 904.1 (appealable judgments and orders do not include demurrers); Fontani v. Wells Fargo Invs., 129 Cal. App. 4'" 719, 736 (2005) (refusing to review trial court demurrer ruling on appealoflater order that required consideration of likelihood of success on underlying merits). Cf Aiuto v. City & Cnty. ofSan Francisco, 201 Cal. App. 4th 1347 (2011) (considering on appeal a timeliness argument madebeforethetrial court on the same preliminary injunction motion, not on an unsuccessful demurrer). 30 stated its intent to enforce Measure E against Respondents by sending a letter stating that Respondents “are now subject to the provisions of ~ Measure E,” and that Respondents had “six (6) months from the date of this letter to discontinue the land application of biosolids.” 2 AA 413 (emphasis added); Slip Op. at 12. Plaintiffs filed their suit a week later. This January 19 letter was an enforcement action that caused Respondents’ claims to accrue anew andstarted a new three-year clock. CONCLUSION This Court should apply “the clear, plain languageofthe statute,” as found by Judge Hicks, 2 AA 514, andaffirm his and the Court ofAppeal’s ruling that Respondents’ claims were timely underthe plain terms of 28 U.S.C. § 1367(d). Dated: September 23, 2013 CITY OF LOS ANGELES By: /ZMN/ for Edward Jordan Michael N. Feuer (No. 111529) City Attorney Valerie Flores (No. 138572) ManagingAssistant City Attorney Edward M.Jordan (No. 180390) Assistant City Attorney City of Los Angeles 1800 City Hall, 200 N. Main Street Los Angeles, CA 90012-4110 Attorneys for Plaintiff and Respondent City of Los Angeles 3] BEVERIDGE & DIAMOND,P.C. By: “Gab¥J. Smith (SBN 141393) Zachary M.Norris (SBN 268616) 456 Montgomery Street, Suite 1800 San Francisco, CA 94104-1251 Telephone: (415) 262-4000 Facsimile: (415) 262-4040 Email: gsmith@bdlaw.com znorris@bdlaw.com Attorneys for Plaintiffs and Respondents City of Los Angeles, Responsible Biosolids Management, Inc., R&G Fanucchi, Inc., and Sierra Transport, Inc. LAW OFFICES OF MICHAEL J. LAMPE By: |ZN/ for Mbe Campe Michael J. Lampe (SBN 82199) Michael P. Smith (SBN 206927) 108 W. Center Avenue Visalia, California 93291 Telephone: (559) 738-5975 Facsimile: (559) 738-5644 mjl@lampe-law.com Attorneysfor Plaintiff and Respondent City of Los Angeles 32 LEWIS BRISBOIS BISGAARD & SMITH LLP py: MINfor Paul Beck Daniel V. Hyde (SBN 63365) Paul J. Beck (SBN 115430) 221 N. Figueroa Street, Suite 1200 Los Angeles, California 90012 Telephone: (213) 250-1800 Facsimile: (213) 250-7900 hyde@Ibbslaw.com beck@lbbslaw.com Attorneys for Plaintiff and Respondent County Sanitation District No. 2 of Los Angeles County WOODRUFF SPRADLIN & SMART / / ~ By:A for Loic thaer Bradley R. Hogin (SBN 140372) Ricia R. Hager (SBN 234052) 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 Telephone: (714) 558-7000 Facsimile: (714) 835-7787 bhogin@wss-law.com rhager@wss-law.com Attorneys for Plaintiff and Respondent Orange County Sanitation District 33 SOMACH SIMMONS & DUNN By: /ZMN/ or Theresa Dunham Theresa A. Dunham (SBN 187644) 500 Capitol Mall, Suite 1000 Sacramento, California 95814 Telephone: (916) 469-7979 Facsimile: (916) 446-8199 tdunham@somachlaw.com Attorneys for Plaintiff and Respondent California Association of Sanitation Agencies 34 CERTIFICATION Pursuant to California Rules of Court 8.516(c)(1), and in reliance upon the word count feature of the software used and not counting words excluded under Rule 8.504(d)(3), I certify that this ANSWERcontains 8,877 words. Dated: September 23, 2013 chary M. Norris 35 PROOF OF SERVICE At the time of service I was over 18 years of age and not a party to this action. My business address is 456 Montgomery Street, Suite 1800, San Francisco, California 94104. On September 23, 2013, I causedthe: ANSWERON THE MERITS to be served on the persons below: Theresa A. Goldner County Counsel Mark L. Nations Chief Deputy County Counsel County of Kern 1115 Truxtun Avenue,4th Floor Bakersfield, CA 93301 Tel: (661) 868-3800 Fax (661) 868-3809 Email: tgoldner@co.kern.ca.us; mnations@co.kern.ca.us ccollins@co.kern.ca.us Hogan Law APC Michael M. Hogan 225 Broadway, Suite 1900 San Diego, Ca 92101 Tel: (619) 687-0282 Fax: (619) 234-6466 Arnold & Porter, LLP Jerome B. Falk,Jr. Steven L. Mayer Three Embarcadero Center,7th Floor San Francisco, CA 94111-4024 Tel: (415) 434-1600 Attorneys for Defendants/Appellants County of Kern and Kern County Board of Supervisors PROOF OF SERVICE Clerk of the Court Clerk ofthe Court Court ofAppeal Superior Court for the State of Fifth Appellate District California State of California County of Tulare 2424 Ventura Street County Civic Center Fresno, CA 93721 2121 South Mooney Boulevard Visalia, CA 93291 The documents were served by the following means: [x] BY UNITED STATES MAIL.I enclosed the documents in a sealed envelope or package addressed to the personsat the addresses in San Francisco, California and deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business’ practice for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a \ sealed envelope with postage fully prepaid. Dated: September 23, 2013 Sheila Griffin PROOF OF SERVICE