McCLAIN v. SAV-ON DRUGSAmicus Curiae, League of California Cities and California State Association of Counties, Request for Judicial NoticeCal.April 20, 2018SUPREME COURT No. $241471 F | LED In the Supreme Courtof California APR 20 2018 Jorge Navarrete Clerk Michael McClain,Avi Feigenblatt, and Gregory Fisher, Plaintiffs, Appellants andPetitioners, Deputy vs. Sav-On Drugs,etal., Defendants and Respondents. After a Decision of the Court ofAppeal Second Appellate District, Division 2 Case Nos. B265011 and B265029 Affirming a Judgment of Dismissal Following An OrderSustaining Demurrer Without Leave to Amend Los Angeles County Superior Court, Case Nos. BC325272 and BC327216 Honorable John Shephard Wiley, Presiding MOTION FOR JUDICIAL NOTICE IN SUPPORT OF APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF AMICI LEAGUE OF CALIFORNIA CITIES AND CALIFORNIA STATE ASSOCIATION OF COUNTIES *MICHAEL G. COLANTUONO,State Bar No. 14355! MColantuono@chwlaw.us ANDREW C. RAWCLIFFE,State Bar No. 259224 ARawcliffe@chwiaw.us COLANTUONO, HIGHSMITH & WHATLEY, PC 420 Sierra College Drive, Suite 140 GrassValley, California 95945-509| Telephone: (530) 432-7357 Facsimile: (530) 432-7356 Attorneys for Amici Curiae League of California Cities and California State Association of Counties 192935. To the Honorable Chief Justice and Associate Justices of the Supreme Court of the State of California: Pursuantto California Rules of Court, rule 8.252, and Evidence Codesections 452 and 459, the League of California Cities (the “League”) and the California State Association of Counties (“CSAC”)(collectively, “Amici”), hereby move this Court to take judicial of the documents attached as Exhibits A and B to the Declaration of Michael G. Colantuonoin supportoftheir application to file an amicus curiae brief and their amicusbrief in McClain, et al. v. Sav-On,et al., case number $241471 (“amicus brief”). e Exhibit A is a copy of the City of San Diego’s Municipal Code, chapter6, article 01, division 25 entitled “San Diego Tourism Marketing District Procedural Ordinance” (“San Diego TMD Ordinance’). e Exhibit B is a copy ofthe City of Pasadena’s Municipal Code, title 4, chapter 4.101, entitled “Pasadena Tourism Business ImprovementDistrict” (“Pasadena TBID Ordinance”). Amici do nottake a position on the merits of the appeal. Instead, they endeavorto provide a wider policy frameworkfor deciding the case. The materials are local revenue measures that havea similar third-party tax structureto the state salestax at issue in this appeal. The materials are relevantto the issues presented because a broadly wordeddecision that either eliminates or elides 192935.1 the distinction between the legal and economic incidence could affect the stability of these and similar local revenue measure. It is unlikely that any party to this case presented these materials to thetrial court. The matters to be noticed relate to proceedingsthat occurred both before andafter the orderor judgmentthatis the subject of the appeal. Forinstance, the ordinances wereboth originally enacted before the order or judgmentinthis case, but a subsequent amendmentto the San Diego TMD Ordinanceoccurredin 2016. This Motion is based on the attached Memorandum, which contains the information required by California Rules of Court, rule 8.252(a); a true and correct copy of the documents of which notices is sought; attached here as Exhibits A and B to the Declaration of Michael G. Colantuono; and a proposed order granting this Motion. DATED: April 12, 2018 COLANTUONO, HIGHSMITH & WHATLEY, PC MICHAELG. COLANTUONO ANDREW C. RAWCLIFFE Attorneys for Amici Curiae League of California Cities and California State Association of Counties 192935.1 MEMORANDUM I. GENERAL PRINCIPLES OF JUDICIAL NOTICE “Judicial notice is the recognition and acceptance by the court, for use ... by the court, of the existence of a matter of lawor fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Lockley v. Law Office of Cantrell, et al. (2001) 91 Cal.App.4th 875, 882.) “The underlyingtheory of judicial noticeis that the matter beingjudicially noticed is a law orfact thatis not reasonably subject to dispute.” (Ibid., original emphasis; see Evid. Code, § 452, subd.(h).) A court reviewing an appeal maytake judicial notice of any materials thatare: (1) specified in Evidence Codesection 452, and (2) relevantto the dispositive questions before the court. (Evid. Code, § 459; Hughes Electronics Corp. v. Citibank Delaware (2004) 120 Cal.App.4th 251, 266, fn. 13 [only relevant material may be noticed].) The materials specified in Evidence Code section 452 include “legislative enactments issued by or under the authority of ... any public entity in the United States” and “official acts of the legislative... department] ... of any state of the United States,” as well as items “that are not reasonably subjectto dispute and are capable of immediate and accurate determination by resort to sourcesof reasonably indisputable accuracy.” (Evid. Code, § 452, subds.(b), (c) & (h).) 1929351 il. THE MATERIALS ARE NOTICEABLE AND RELEVANT The exhibits are judicially noticeableas legislative enactments and regulations. (Cal. Rules of Court, rule 8.252(a)(2)(C); Evid. Code, § 452, subd.(b); City ofMonterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1077, fn. 5 [noticing city code sections as “legislative enactments of a municipality”].) Moreover, these exhibits are not reasonably subject to dispute, and are therefore capable of immediate determination of accuracy. (Evid. Code, § 452, subd.(h).) Indeed, both exhibits are immediately available on the Cities’ websites.! The exhibits to this Motion are relevant becausethey assist in providing the Court with a broaderpolicy context for deciding the case. The exhibits are local revenue measuresthat have a similar third-party tax structureto the state sales tax at issue in this appeal. These and other local revenue measures should be considered in ' Exhibit A is available on the City of San Diego’s website under the Office of the City Clerk: andalso available at (as of April 6, 2018). Exhibit B is available on the City of Pasadena’s website underthe Office of the City Clerk: andalso available at (as of April 6, 2018). 192935.1 deciding the case because a broadly wordeddecisionthat either eliminates or elides the distinction between the legal and economic incidence of revenue measures could affect the financial integrity of local governments. (See Weatherford v. City of San Rafael (2017) 2 Cal.5th 1241, 1252 [consideration given to consequencesthat will flow from Court's interpretation, quotation omitted].) il. CONCLUSION For the foregoing reasons, the Amici respectfully request the Court take judicial notice of Exhibit A andB,listed above and attached to the Declaration of Michael G. Colantuono. DATED: April 12, 2018 COLANTUONO, HIGHSMITH & WHATLEY, PC MICHAEL G. COLANTUONO ANDREWC. RAWCLIFFE Attorneys for Amici Curiae Leagueof California Cities and California State Association of Counties 192935] DECLARATION OF MICHAEL G. COLANTUONO (Cal. Rules of Court, rule 8.54(a)(2)) I, MICHAEL G. COLANTUONO,declare as follows: 1. Tam anattorneylicensed to practice law in the State of California and before this Court. I am a Shareholderin the law firm of Colantuono, Highsmith & Whatley, PC,attorneys of record for Amici League of California Cities and California State Association of Counties. I have personal knowledge of the matters set forth herein andif called uponas a witness, I could competently testify thereto. 2. Attached as Exhibit A is a true and correct copyof the City of San Diego’s Municipal Code, chapter6, article 01, division 25 entitled “San Diego Tourism Marketing District Procedural Ordinance,” last amended onJune 29, 2016. I obtained this copy from the City of San Diego’s website at , also available at (last accessed on April 6, 2018) on April 6, 2018. 3. Attached as Exhibit B is a true andcorrect copy of the City of Pasadena’s Municipal Code,title 4, chapter 4.101, entitled “Pasadena Tourism Business ImprovementDistrict,” last amended in 2003. I obtained this copy from the City of Pasadena’s website at , also 192935.1 available at (last accessed on April 6, 2018) on April 6, 2018. I declare under penalty of perjury underthe lawsof the State of California that the foregoingis true and correct. Executed on April 12, 2018 at Grass Valley, California. ASS MICHAEL G. COLANTUONO 192935.1 [Proposed] ORDER TAKING JUDICIAL NOTICE Good cause appearing, IT IS HEREBY ORDEREDthat Amici League of California Cities’ and California State Association of Counties’ Motion forJudicial Notice in support oftheir application to file an amicuscuriae brief and their amicus curiae brief is granted. IT IS ORDEREDthatthis Court shall take judicial notice of the following: A. City of San Diego’s Municipal Code, chapter6,article 01, division 25 entitled “San Diego Tourism Marketing District Procedural Ordinance,” last amended on June 29, 2016. B. City of Pasadena’s Municipal Code,title 4, chapter 4.101, entitled “Pasadena Tourism Business Improvement District,” last amendedin 2003. DATED: By: Chief Justice of the California Supreme Court 1929351 PROOF OF SERVICE Michael McClain, Avi Feigenblatt, and Gregory Fisher, v. Sav-On Drugs,et al., California Supreme Court Case No. $241471 I, Ashley A. Lloyd, declare: Iam employed in the County of Nevada,State of California. I am over the age of 18 and not a party to the within action. My business addressis 420 Sierra College Drive, Suite 140, Grass Valley, California 95945-5091. On April 12, 2018, I served the document(s) described as MOTION FOR JUDICIAL NOTICE IN SUPPORT OF APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF AMICI LEAGUE OF CALIFORNIA CITIES AND CALIFORNIA STATE ASSOCIATION OF COUNTIESonthe interested parties in this action addressed as follows: SEE ATTACHEDLIST a BY MAIL: By placinga true copy thereof enclosed in a sealed envelope. The envelope was mailed with postage thereon fully prepaid. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Underthat practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Grass Valley, California, in the ordinary course of business. I am awarethat on motion of the party served, service is presumedinvalid if the postal cancellation date or postage meter date is more than one dayafter service of deposit for mailing in affidavit. I declare under penalty of perjury underthe lawsof the State of California that the aboveis true and correct. Executed on April 12, 2018, at Grass Valley, California. Ashley A. Lloyé/ / | 10 192935. SERVICE LIST Michael McClain, Avi Feigenblatt, and Gregory Fisher, v. Sav-On Drugs,etal., California Supreme Court Case No. 5241471 ThomasAlistair Segal Taras Peter Kick Robert James Dart Gerald James Strenio The Kick Law Firm, APC 201 Wilshire Blvd., Suite 350 Santa Monica, CA 90401 Attorneys for Plaintiffs and Appellants, Michael McClain, Avi Feigenblatt, and Gregory Fisher Bruce Russell MacLeod ShawnaLeeBallard McKool Smith Hennigan, PC 255 Shoreline Drive, Suite 510 Redwood Shores, CA 94065 Attorneys for Plaintiffs and Appellants, Michael McClain, Avi Feigenblatt, and Gregory Fisher Steven J. Bernheim The Bernheim Law Firm 6220 W. 3"4 Street, Apt. 423 Los Angeles, CA 90036-3173 Attorneys for Plaintiffs and Appellants, Michael McClain, Avi Feigenblatt, and Gregory Fisher Nhan Thien Vu Office of the Attorney General 300 S. Spring Street, #1702 Los Angeles, CA 90013-1230 Office of the Attorney General Philip Jon EskenaziKirk Austin Hornbeck,Jr.Hunton & Williams LLP550 S. Hope Street, Suite 2000Los Angeles, CA 90071 Attorneys for Defendants andRespondents Sav-On Drugs, andAlbertson’s, Inc. 192935] 11 Robert Paul Berry Carol Michelle Silberberg Berry & Silberberg, LLC 16150 Main Circle Dr., Ste. 120 St. Louis, MO 63017 Attorneys for Defendant and Respondent, Wal-Mart Stores, Inc. David F. McDowell Miriam A.Vogel Morrison & Foerster, LLP 707 Wilshire Blvd., Suite 6000 Los Angeles, CA 90017-3543 Attorneys for Defendant and Respondent, Target Corporation Joseph Duffy Joseph HenryBias Morgan Lewis & Bockius, LLP 300 S. Grand Ave., 22"4 Floor Los Angeles, CA 90071-3132 Attorneys for Defendants and Respondents, Rite Aid Corporation, and Walgreen Co. James C. Martin Douglas C. Rawles Kasey James Curtis Reed Smith LLP 355 S. Grand Ave., Suite 2900 Los Angeles, CA 90071 Attorneys for Defendants and Respondents, Rite Aid Corporation, and Walgreen Co. Shelley Gershon Hurwitz Richard Thomas Williams Holland & Knight LLP 400 S. HopeStreet, 8 Floor Los Angeles, CA 90071 Attorneys for Defendants and Respondents, CVS Caremark Corp., Longs Drug Stores Corp., Longs Drug Store California Inc. TheodoreKeith BellSafewayInc.5918 Stoneridge Mall RoadPleasanton, CA 94588-3229 Attorneys for Defendants andRespondents, Safeway, Inc., TheVons Companies, and Vons FoodServices, Inc. 1929351 12 Daniel Berko Attorneys for Pub/Depublication Law Office of Daniel Berko Requestor 819 EddyStreet San Francisco, CA 94109-7701 Mark A. Chavez Attorneys for Public Citizens, Inc., Chavez & Gertler, LLP Amicus Curiae 42 Miller Avenue Mill Valley, CA 94941-1904 13 192935.]
