RUBENSTEIN v. DOE NO. 1Respondent’s Response to Amicus Curiae BriefCal.January 23, 2017“ RET, mS PRT TgRy SO% re,hpT of SAY $234269 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA DOE NO.1, Defendant and Petitioner, SUPREME COURT v. FILED LATRICE RUBENSTEIN, JAN 23 2017 Plaintiff and Respondent Jorge Navarrete Clerk Deputy ANSWERTO AMICUS CURIAE BRIEF ioe ” : After a Decision From the Court of Appeal of California, Fourth Appellate District, Division One, Case No. D066722 *Lee H. Roistacher, Esq. (SBN 179619) Richard J. Schneider, Esq. (SBN 118580) Daley & Heft, Attorneys at Law 462 Stevens Avenue, Suite 201, Solana Beach, CA 92075 Tel: (858) 755-5666 / Fax: (858) 755-7870 Attorneys for Defendant and Petitioner: Doe No.1 Leila Nourani (SBN 163336) Sherry L. Swieca (SBN 198700) Douglas M. Egbert (SBN 265062) Jackson Lewis P.C. | 725 8. Figueroa Street, Suite 2500 Los Angeles, CA 90017 Tel: (213) 689-0404 / Fax (2138) 689-0430 Attorneys for Defendant and Petitioner: Doe No. 1 $234269 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA DOE NO.1, Defendant and Petitioner, Vv. LATRICE RUBENSTEIN, Plaintiff and Respondent — ANSWER TO AMICUS CURIAE BRIEF After a Decision From the Court of Appeal of California, Fourth Appellate District,Division One, Case No. D066722 *Lee H. Roistacher, Esq. (SBN 179619) Richard J. Schneider, Esq. (SBN 118580) Daley & Heft, Attorneys at Law 462 Stevens Avenue, Suite 201, Solana Beach, CA 92075 Tel: (858) 755-5666 / Fax: (858) 755-7870 Attorneys for Defendant and Petitioner: Doe No. 1 Leila Nourani (SBN 163336) Sherry L. Swieca (SBN 198700) Douglas M. Egbert (SBN 265062) Jackson Lewis P.C. | 725 S. Figueroa Street, Suite 2500 Los Angeles, CA 90017 . Tel: (213) 689-0404 / Fax (213) 689-0430 Attorneys for Defendant and Petitioner: Doe No. 1 TABLE OF CONTENTS I. Amici’s Public Policy And Fairness Arguments Are Irrelevant To The Issues Presented To This Court Because The Legislature Considered Them WhenIt Declined To Exempt From The Government Code’s Claim Presentation Requirement And Deadline Those Childhood Sexual Abuse Claims Based On Repressed Memories Of Pre-January 1, 2009 Sexual ADUSEC........ccceccceceesecectseeeeeneneesenssascuseseusseeeeesuensesernerns 1 II. Conclusion.........cccccccscccsccscceecccecesseeeteceeeeenseseseeenevcsunns4 CERTIFICATE OF WORD COUNT..........cccceccceceeceeceeeassseeeusece4 TABLE OF AUTHORITIES Cases Jordache Enters., Inc. v. Brobeck. Phleger & Harrison (1998) 18 Cal.4th 739.00... cccccscccescssseessesescsereseeeessrsserenees 3 Los Angeles County Metro. Transp. Auth. V. Alameda Produce Mkt., LLC (2011) 52 Cal.4th 1100.........ccccccccssccecesssssseaseeeeeeseseveaceas 3 il I. Amici’s Public Policy And Fairness Arguments Are Irrelevant To The Issues Presented To This Court Because The Legislature Considered Them When It Declined To Exempt From The Government Code’s Claim Presentation Requirement And Deadline Those Childhood Sexual Abuse Claims Based On Repressed Memories Of Pre-January 1, 2009 Sexual Abuse With Senate Bill No. 1339 (2007-2008 Reg.Sess.), the Legislature considered exemptingall childhood sexual abuse claims from the Government Code’s claim presentation requirement because of the points Amici raises. It weighed them against the potentialfiscal ramifications to government entities and struck a balance between these competing publicpolicies, exempting only those claims based on post-January 1, 2009 conduct. (See Sen. Appropriations Com., Analysis of Sen. Bill No. 1339 (2007-2008 Reg. Sess.), as amended Feb. 20, 2008); Government Code section 905, subdivision (m).) In doing so, the Legislature knew it was holdingall victims of pre-January 1, 2009 childhood sexual abuseto the six-month deadline whether or not memories were repressed during the six month claim presentations period. (See OpeningBrief, pp. 41-50; Reply Brief, pp. 31-37.) Aninstructive example of legislative intent is found in an Assembly Committee on Judiciary analysis of Senate Bill 640, which noted the key issueas follows: “Since victimsof child sex abuse may not recognize or report their abuse until yearslater, should these claims brought against local public entities, such as cities and schooldistricts, be exempted from the requirement that they first be presented to the public entity within six months of occurrence?” (Ass. Com. On Judiciary, Analysis of Sen. Bill No. 640 (2007-2008 Reg.Sess.), as amended June9, 2008,p.1 (all capitals omitted).) Thus, the Legislature recognized victims of | childhood sexual abuse repress memories of the abuse, but for policy reasons, chose not to exempt from the claim presentation requirement those claims based on repressed memoriesof pre- January 1, 2009 abuse. It did so even though some might be denied a remedy without the exemption. Although policy reasons and fairness might compel providing such an exemption, this Court’s role is not to “sit in judgment of the Legislature's wisdom in balancing such competing public policies. Instead, due respect for the power of the Legislature and for the separation of powers requires [this Court] to follow the public policy choices actually discernible from 2 the Legislature's statutory enactments.” (Los Angeles County Metro. Transp. Auth. v. Alameda Produce Mkt., LLC(2011) 52 Cal.4th 1100, 1113-1114 Gnternal quotes and cites omitted); see also Jordache Enters., Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 756, (court cannot “devisle] expedients that extend or toll the limitations period”).) IT. Conclusion Amici makepotentially viable public policy and fairness arguments supporting exemption from the government claim presentation requirements and deadline a// childhood abuse claims. However, the Legislature already considered them and ultimately chose not to do so. The place for Amici’s advocacyis the Legislature, not this Court. Respectfully submitted, DATED: January/8, 2017 Daley & Heft, LLP phe Lé¢H-Koistacher Richard J. Schneider Attorneysfor Defendant and Petitioner Doe No. 1 CERTIFICATE OF WORD COUNT The text of this brief consists of 484 words as counted by the Microsoft Office 2010 word-processing program used to generate this document. DATED:January/f, 2017 Daley & Heft, LLP Appi Botstacher te ftBateJ. Schneider Attoneye for Defendant and Petitioner Doe No. 1 ATTORNEYorparty without attorney (Name,state bar number, and address): FOR COURT USE ONLY Daley & Heft, LLP, Attorneys at Law Lee H. Roistacher, Esq. (SBN 179619) Richard J. Schneider, Esq. (SBN 118580) 462 Stevens Avenue #201, Solana Beach, CA 92075 Telephone No. (858) 755-5666 Facsimile No. (858) 755-7870 ATTORNEY FOR (Name): Doe No. 1 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Street Address: 350 McAllister Street City and Zip Code: San Francisco, CA 94102 PLAINTIFF(S)/PETITIONER(S) Doe No.1 Case Number: §234269 Defendant(S)RESPONDENT(S) Latrice Rubenstein reOFNPPeal Case No, Superior Court Case No.: ECU08107 PROOF OF SERVICE—CIVIL JUDGE:_ Hon.Juan Ulloa Check methodof service: DEPT: 9 C1 By Personal Service O By Mail CJ By MessengerService O By Facsimile [Ex] By Overnight Delivery O By E-Mail/Electronic Transmission (Do not use this ProofofService to show service ofa Summons and Complaint) 1. Atthe time of service I was over 18 years of age and nota party to this action. 2. My addressis (specify one): a. Business: b. CO Residence: 462 Stevens Avenue, Suite 201, Solana Beach, CA 92075 3. The fax number or electronic address from which I served the documents is (complete ifservice was byfax or electronic service): 4. On (date): January Ae) .2017_, I served the following documents (specify): [<]The documentsarelisted in the Attachment to Proofof Service—Civil (Documents Served). 5. Iserved the documents on the person or persons below,as follows: a. Nameofperson served: b. (Complete ifservice was bypersonalservice, mail, overnight, or messenger service.) Businessor residential address where person was served: c. [1 (Complete ifservice was byfax or electronic service.) (1) Fax numberorelectronic notification address where person was served: (2) Timeof Service: The names, addresses, and other applicable information about the persons served is on the Attachmentto Proof of Service—Civil (Persons Served). 6. The documents were served by the following means(specify): a. O By personalservice. I personally delivered the documents to the persons at the addresses listed in item 5. (1) For a party represented by an attorney, delivery was madeto theattorney or at the attorney's office by leaving the documents in an envelope or packageclearly labeled to identify the attorney being served with a receptionist or an individual in charge of the office, between the hours of nine in the morning andfive in the evening. (2) For a party, delivery was made to the party or by leaving the documentsat the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. CASE NAME: CASE NUMBER: Doe No. 1 v. Latrice Rubenstein $234269 Court of Appeal Case No. D066722 Superior Court Case No.: ECU08107 6b. 0 By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses in item 5 and (specify one): (1) 12 deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. (2) O placed the envelope for collection and mailing, following our ordinary business practices. | am readily familiar with this business's 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. [am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at (city and state): Solana Beach, California c. By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses in item5. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. d. CJ By messengerservice. I served the documents by placing them in an envelope or package addressedto the personsat the addresses listed in item 5 and providing them to a professional messenger service for service. (A declaration by the messenger must accompany this ProofofService or be contained in the Declaration ofMessenger below.) e. C1 Byfax transmission. Based on an agreementof the parties to accept service by fax transmission, I faxed the documentsto the persons at the fax numberslisted in item 5. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, whichI printed out, is attached. f. [1 Byelectronic service. Based on court order or an agreement ofthe parties to accept service by e-mail or electronic transmission,I caused the documents to besent to the personsat the e-mail addresses listed in item 5, I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Date: January _, 2017 canal Maria E. Kilcrease Wha. c ‘ (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) (Ifitem 5d above is checked, the declaration below must be completed or a separate declarationfrom a messenger mustbe attached.) DECLARATION OF MESSENGER C1 Bypersonalservice. I personally delivered the envelope or package received from’ the declarant above to the persons at the addresses listed in item 4. (1) For a party represented by an attorney, delivery was madeto the attorney orat the attorney's office by leaving the documents in an envelope or package, which was clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office. (2) For a party, delivery was madeto the party or by leaving the documentsat the party's residence with some person notless than 18 years of age between the hours of eight in the morning andsix in the evening. Atthe time of service, I was over 18 years of age. I am nota party to the above-referenced legal proceeding. I served the envelope or package, as stated above, on (date): I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) ATTACHMENTTO PROOF OF SERVICE—CIVIL (Proof of Service) CASE NAME: Doe No. 1 v. Latrice Rubenstein CASE NUMBER: S234269 Court of Appeal Case No. D066722 Superior Court Case No.: ECU08107 ATTACHMENT TO PROOFOF SERVICE - CIVIL (DOCUMENTS SERVED) The documents that were served are as follows (describe each documentspecifically): ANSWER TO AMICUS CURIAE BRIEF ATTACHMENTTO PROOF OF SERVICE—CIVIL (Proof of Service) CASE NAME: Doe No. I v. Latrice Rubenstein CASE NUMBER: S234269 Court of Appeal Case No. D066722 Superior Court Case No.: ECU08107 ATTACHMENT TO PROOF OF SERVICE- CIVIL (PERSONS SERVED) Name, Address, and Other Applicable Information About Persons Served: Nameof Person Served: Where Served: (Provide business or residential address where service was made bypersonal service, mail, overnightdelivery, or messenger service. For other meansofservice, providefax number or electronic notification address, as applicable.) Timeof Service: (Completefor service byfax transmission orelectronic service.) Elliott N. Kanter, Esq. Justin O. Walker, Esq. Elliott N. Kanter, Esq. Justin O. Walker, Esq. Law Offices of Elliott N. Kanter 2445 Fifth Avenue, Suite 350 San Diego, CA 92101 Tel: (619) 231-1883 Fax: (619) 234-4553 Email: ekanter@enkanter.com jwalker@enkanter.com Attorney for Plaintiff and Respondent Latrice Rubenstein Time: Holly Noelle Boyer, Esq. Holly Noelle Boyer, Esq. Esner Chang & Boyer 234 East Colorado Boulevard Suite 975 Pasadena, CA 91101-2262 Tel: (626) 535-9860 Fax: (626) 535-9859 Email: hboyer@ecbappeal.com Attorneys for Plaintiff and Respondent Latrice Rubenstein Leila Nourani, Esq. Sherry L. Swieca, Esq. Douglas M. Egbert, Esq. Leila Nourani, Esq. Sherry L. Swieca, Esq. Douglas M. Egbert, Esq. Jackson Lewis P.C. 725 S. Figueroa Street, Suite 2500 Los Angeles, CA 90017 Tel: (213) 689-0404 Fax (213) 689-0430 Attorneys for Defendant and Petitioner Doe No.1 Time: ATTACHMENTTO PROOF OF SERVICE—CIVIL (Proof of Service) CASE NAME: Doe No. 1 v. Latrice Rubenstein CASE NUMBER: S234269 Court of Appeal Case No. D066722 Superior Court Case No.: ECU08107 Name of Person Served: Where Served: (Provide business or residential address where service was made bypersonalservice, mail, overnight delivery, or messenger service. For other means ofservice, providefax numberor electronic notification address, as applicable.) Time of Service: (Completefor service byfax transmission or electronic service.) Brittany Crowell, Psy.D. Brittany Crowell, Psy.D. Licensed Psychologist (Psy 28712) Clinical and Forensic Case Manager Professional Clinical & Forensic Services 10065 Old Grove Road Suite 101 San Diego, CA 92131 Tel: (858) 527-1860 x4560 Fax: (858) 527-1743 E-mail: IVATpcfs@alliant.edu Amicus Curiae Family Violence & Sexual Assault Institute and Institute on Violence, Abuse & Trauma Louis A. Leone, Esq. Seth L. Gordon, Esq. Louis A. Leone, Esq. Seth L. Gordon, Esq. Leone & Alberts 2175 N. California Blvd. Suite 900 Walnut Creek, CA 94596 Tel: (925) 974-8600 Fax: (925) 974-8601 E-mail: sgordon@leonealberts.com Attorneys for Amici Curiae Northern California Regional Liability Excess Fund, Southern California Regional Liability Excess Fund, Statewide Association of Community Colleges, and School Association for Excess Risk ATTACHMENTTO PROOF OF SERVICE—CIVIL (Proof of Service) CASE NAME: Doe No. 1 v. Latrice Rubenstein CASE NUMBER: S234269 Court of Appeal Case No. D066722 Superior Court Case No.: ECU08107 Name of Person Served: Where Served: service was made bypersonal service, mail, notification address, as applicable.) (Provide business or residential address where overnight delivery, or messenger service. For other means ofservice, providefax numberor electronic Timeof Service: (Completefor service byfax transmission or electronic service.) Hon. Juan Ulloa Hon. Juan Ulloa Superior Court of California Superior Court of California County of Imperial County of Imperial 939 West Main Street El Centro, CA 92243 (760) 482-2200 Court of Appeal - Court of Appeal Division One Fourth District 750 B Street Division One San Diego, CA 92101 750 B Street San Diego, CA 92101 (619) 744-0760 ATTACHMENTTO PROOFOF SERVICE—CIVIL (Proof of Service)
