GERARD v. ORANGE COAST MEMORIAL MEDICAL CENTER

Respondent’s Request for Judicial Notice

Cal.October 13, 2017

SUPREME COURT S$241655 FILED In The Supreme Court OCT 13 2017 of the Jorge Navarrete Clerk State of California ——_—_—_—— Deputy JAZMINA GERARD, KRISTIANE McELROY AND JEFFREY CARL Plaintiffs and Appellants, Vv. ORANGE COAST MEMORIAL MEDICAL CENTER Defendant and Respondent. On Review From The Court Of Appeal For the Fourth Appellate District, Division Three Ath Civil No. G048039 After An Appeal From the Superior Court of Orange County Honorable Nancy Wieben Stock, Judge Case Number 30-2008-00096591 MOTION FOR JUDICIAL NOTICE IN SUPPORT OF RESPONDENT ORANGE COAST MEMORIAL MEDICAL CENTER’S ANSWERBRIEF ON THE MERITS; DECLARATION OF KARIN DOUGAN VOGEL SHEPPARD, MULLIN, RICHTER & SHEPPARD, MULLIN, RICHTER & HAMPTONLLP HAMPTONLLP Richard J. Simmons, Cal. Bar No. 72666 *Robert J. Stumpf, Jr., Cal. Bar No. 72851 Derek R. Havel, Cal. Bar No. 193464 Karin Dougan Vogel, Cal. Bar No. 131768 Daniel J. McQueen, Cal. Bar No. 217498 Four Embarcadero Center, 17" Floor 650 Town Center Drive, 4'" Floor San Francisco, California 94111 Costa Mesa, California 92626-1993 Tel: 415.434.9100 Tel: 714.513.5100 Attorneys for Defendant and Respondent ORANGE COAST MEMORIAL MEDICAL CENTER MOTION FOR JUDICIAL NOTICE Pursuant to California Rules of Court 8.252 and Evidence Code sections 452, 453, and 459, defendant and respondent Orange Coast Memorial Medical Center (Orange Coast) requests the Court to take judicial notice of the following materials, true and correct copies of which are filed in the tabbed Compilation of Exhibits, filed concurrently herewith: Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Exhibit G: Exhibit H: ExhibitI: Exhibit J: SMRH::483950340.1 June 30, 1993 Notice from the Industrial Welfare Commission (IWC) regarding [WC Orders 4-89 and 5-89, Amendments to [WC Order No. 5-89 and Statementas to the Basis of Amendments to Sections 2, 3, and 11 of IWC Order No. 5-89 Assembly Bill No. 60 (1999-2000 Reg.Sess.) Minutes of Public Meetings of the IWC between October 1, 1999 and June 30, 2000 Division of Labor Standards Enforcement’s (DLSE) December 23, 1999 memorandumtitled: “Understanding AB 60: An In-Depth Look at the Provisions of the ‘Eight Hour Day Restoration and Workplace Flexibility Act of 1999” Section 45.2 of the DLSE’s EnforcementPolicies and Interpretations Manual IWC Wage Order No. 5-2001 and Statement asto the Basis Senate Bill No. 88 (1999-2000 Reg.Sess.) Senate Bill No. 327 Letter from Rep. Michael M. Honda to Gov.Jerry Brown dated October 7, 2015 Re: SB 327 (Hernandez) Request to Examine Committee Records on Legislation Exhibit K: Minutes of Assembly Committee on Labor and Employment Hearing on September 8, 2015 Re SB 327 (Ed Hernandez) Exhibit L: Senate Bill History — SB 327 Exhibit M: United Nurses Associations of California/Union of Health Care Professionals and Service EmployeesInternational Union Local 121RN AmicusLetter in Support of Review dated April 3, 2015 Exhibit N: United Nurses Associations of California/Union of Health Care Professionals and Service EmployeesInternational Union Local 121RN Amicus Brief DISCUSSION The materials as to which Orange Coast seeks judicial notice can be separated into four categories: official acts of two state agencies (the IWC and the DLSE),legislative bills, legislative history materials, and materials filed in this Court in a previous case. Orange Coast has requested judicial notice of these materials previously, either in this Court or in the Court of Appeal. Plaintiffs have never opposedjudicial notice of the materials. 1. The Court should judicially notice official acts of the IWC (Exhibits A, C, and F) and the DLSE Exhibits A, C and F are all official acts or records of the IWC. The IWCis a state agency that was established to regulate wages, hours, and working conditions in California. (See Brinker Rest. Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026.) The DLSEis the state’s wage and hour law enforcement agency. (See California School ofCulinary Artsv. Lujan (2003) 112 Cal.App.4th 16, 18.) Courts may take judicial notice of: official acts of the legislative and executive departments of California. (See Evid. Code § 452(c).) Official acts include records,reports, and orders of SMRH:483950340.1 administrative agencies. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518 (2001); see also, e.g., California School ofCulinary Arts v. Lujan, supra, 112 Cal.App.4th at p. 26 (taking judicial notice of “orders, minutes, and findings of IWC”’).) Becausethese exhibits are available on the website of a state agencies (the IWC and the DLSE),they are also subject to judicial notice as facts “capable of immediate and accurate determination byresort to sources of reasonably indisputable accuracy.” (Evid. Code § 452(h); seealso,e.g., Moehring v. Thomas (2005) 126 Cal.App.4th 1515, 1523 (granting judicial notice of reports on federal agency websites).) The website addresses for each exhibit, where available, is listed in the Index to the Compilation of Exhibits. Exhibits A, C, and F are relevant to the issues before this Court because they show the process by which Wage Order 5-2001 — the wage order at issue in this appeal — was adopted by the [WC andthe reasoning behind it. Exhibits D and E are relevant because they show the DLSE’s enforcement of Wage Order 5-2001 to allow waiver of health care workers’ second meal periods on shifts over 12 hours. 2. The Court should judicially notice legislative bills (Exhibits B, G, and H) Thelegislative bills AB 60, SB 88 and SB327 (Exhibits B, G, and H)are properly judicially noticed as an official act of the legislature (Evid. Code § 452(c)), and also as part of the statutory law of California (Evid. Code § 452(a)). Legislative bills are “materials of the type [courts] ordinarily consider in addressing questionsof legislative intent.” (People v. Superior Court (1996) 13 Cal.4th 497, 504 fn. 1.) Courts therefore routinely take judicial notice of California legislative bills under Evidence Code section 452, subdivisions (a) and (c). (Alford v. Superior Court SMRH:483950340.1 (2003) 29 Cal.4th 1033, 1041 fn. 4; Fiscal v. City and County ofSan Francisco (2008) 158 Cal.App.4th 895, 913.) All three of these legislative bills are relevant becausethe resulting statutes establish the statutory framework for the issues related to the viability of Wage Order 5-2001. 3. The Court should judicially notice legislative history materials (Exhibits I, J, K and L) Exhibits I, K and L are portionsofthe legislative history for SB 327. Exhibit J is a copy of the request to examine those materials. These legislative history materials were authenticated by the declaration of Gail Blanchard-Saiger previously filed in this Court and attached again to the Motion for Judicial Notice and Declaration of Karin Dougan Vogelfiled concurrently, wherein she identified these items as exhibits 1, 2 and 3. Numerouscourts have granted requests to review the legislative history for a particular statute. (See, e.g., Marie v. Riverside County Reg. Park, etc. (2009) 46 Cal.4th 282, 290-292 [‘In orderto ascertain a statute’s most reasonable meaning, we often examineits legislative history.”(citation omitted)]; Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 676 n. 8, and Wirth v. State ofCalifornia (2006) 131 Cal.App.4th 131, 141 n. 6.) The Court should do so here as well. Exhibit I, which was among the materials included in the Senatefile at Senate 311, is a letter dated October 7, 2015, from the Honorable Congressman Michael M. Honda to Governor Brownurging him to sign SB 327. Congressman Honda waswriting “as a principal co-author of SB 88 that waspassed by the Legislature and signed by the Governorin 2000.” The Court has accepted the use of an author’s letter to the Governorto cast light on the history of a measure andasa reiteration of legislative discussion and events. (California Teachers Association v. San Diego Community College District (1981) 28 Cal.3d 692, 700; see also Kern v. SMRH:483950340.1 County ofImperial (1990) 226 Cal.App.3d 394, 401 [The statements of the sponsoroflegislation are entitled to be considered in determining the import ofthe legislation].”) Congressman Honda’s letter is entitled to consideration for precisely these reasons. In it he notes, for example, that “two primary purposes of SB 88 were to immediately address twosignificant issues that had arisen after passage of AB 60. Thefirst purpose was to create a computer professional exemption such that highly compensated computer professionals could continue to qualify as exempt even if they were paid on an hourly basis. The second purpose wasto authorize the IWCto establish exemptionsto the overtime obligation for certain certified nurses. This was necessary because AB 60 created Labor Code 515(f), which precluded registered nurses from qualifying as exempt underthe professional exemption. Both of those changes were cited in support ofthe justification for urgencylegislation.” Rep. Hondaalso writes that, “[w]hile it was clear that SB 88 amended Labor Code § 516 to limit the IWC’s authority to adopt new meal period rules after SB 88 was enacted that were inconsistent with Labor Code § 512, there was no discussion or intent to impact any Wage Order Provisions adoptedpriorto that date, including Wage Orders 4 & 5, Section 11(D). In other words, the intent wasto limit the !WC’s authority only prospectively. Of note, this change wasnot cited as a justification for the urgency clause.” Because Congressman Honda’s letter is a “reiteration of legislative discussion and events leading to adoption of proposed amendments rather than merely an expression of personal opinion,”it is entitled to judicial notice. (People v. Superior Court (2005) 132 Cal.App.4th 1525, 1532 (citation omitted) [taking judicial notice of letter to Governor from bill’s SMRH:483950340.1 sponsor that “explain[ed] the events leading to the adoption of amended [statutory] language].”) Exhibit K contains letters from SB 327’s numerous proponents (including hospitals, labor unions, individual nurses, and advocacy groups). In interpreting statutes, courts have consideredletters from a bill’s proponents and opponents. (See,e.g., Roberts v. City ofPalmdale (1993) 5 Cal.4th 363, 378 [considering letters from bill author and bill’s proponents that there was “remarkable unanimity”as to the bill’s intent]; and Guillemin v. Stein (2002) 104 Cal.App.4th 156, 166 n. 12 [citing letter of bill proponent].) Exhibit L can also be found online (see Index to Exhibits for website address). This Court has held thatit will review legislative history thatis officially published in print or online, such as www.leginfo.ca.gov, without requiring a formal request. (See Quelimane Company,Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46 n. 9.) 4. The Court should judicially notice previousfilings in this Court (Exhibits M and N) Whenthis case first came up to the Supreme Court in Case No. S225205, United Nurses Associations of California/Union of Health Care Professionals and Service Employees International Union Local 121RN joined togetherto file an amicusletter in support of review on April 3, 2015 (Exhibit M),andlater to file an amicus brief on the merits in support of Orange Coast on January 7, 2016 (Exhibit N). These briefs are subject to judicial notice as records of this Court under Evidence Codesection 452, subdivision (d). The amicusbriefs are relevant to the issues in this appeal because they address,in particular, how Wage Order 5-2001 is consistent with the health, safety, and welfare of the health care workers who are members of the two unions. SMRH:483950340.1 CONCLUSION For these reasons, Orange Coast respectfully requests the Court to take judicial notice of the materials identified above and filed concurrently in the Compilation of Exhibits for Respondent Orange Coast Memorial Medical Center’s Motion for Judicial Notice. DATED: October 12, 2017 SHEPPARD, MULLIN, RICHTER & HAMPTONLLP A Limited Liability Partnership Including Professional Corporations / . ! Ay yy fon, Va KARIN DOUGAN VOGEL Attorneys for Defendant and ‘ Respondent ORANGE COAST MEMORIAL MEDICAL CENTER SMRH-483950340.1 DECLARATION OF KARIN DOUGAN VOGEL I, Karin Dougan Vogel, hereby declare as follows: 1. I am an attorneyat law,licensed to practice before all of the courts of the State of California. I am a partner with the law firm Sheppard Mullin Richter & Hampton LLP, counsel of record for Defendant and Respondent Orange Coast Memorial Medical Center (Orange Coast). I was the principal drafter of Orange Coast’s Motionfor Judicial Notice filed concurrently in this Court. I have personal knowledge of the mattersset forth in this Declaration and would competently testify thereto if called as a witness. 2. Attached hereto as Exhibit A is a true copy of the June 30, 1993 Notice from the Industrial Welfare Commission (IWC)regarding IWC Orders 4-89 and 5-89, Amendments to IWC Order No. 5-89 and Statement as to the Basis of Amendments to Sections 2, 3, and 11 of[WC Order No. 5-89. 3. Attached hereto as Exhibit B is a true copy of the Assembly Bill No. 60 (1999-2000 Reg. Sess.). I accessed AB 60 from the web page http://www.leginfo.ca.gov/pub/99-00/bill/asm/ab_0051- 0100/ab_60_bill_19990721_chaptered.html. 4. Attached hereto as Exhibit C is a true copy of the Minutes of Public Meetings of the IWC between October 1, 1999 and June 30, 2000. I accessed these minutes from the web pagesat https://www.dir.ca.gov/iwc/Minutes 100199.html https://www.dir.ca.gov/iwe/Minutes 1 1899.htm! https://www.dir.ca.gov/iwe/Minutes 1 11599.htm! https://www.dir.ca.gov/iwe/Minutes121599.htm! https://www.dir.ca.gov/iwe/Minutes 12800.html https://www.dir.ca.gov/iwe/Minutes22500.html SMRH:483950340.1 https://www.dir.ca.gov/iwe/Minutes33 100.html https://www.dir.ca.gov/iwe/Minutes4 1400.html https://www.dir.ca.gov/iwe/Minutes05052000.html https://www.dir.ca.gov/iwe/Minutes52600.html https://www.dir.ca.gov/iwe/Minutes63000.html 5. Attached hereto as Exhibit D is a true copy of the Division of Labor Standards Enforcement’s (DLSE) December 23, 1999 memorandum titled: “Understanding AB 60: An In-Depth Lookat the Provisions of the ‘Eight Hour Day Restoration and Workplace Flexibility Act of 1999.” I accessed this documentfrom the web page https://www.dir.ca.gov/dlse/AB60update.htm. 6. Attached hereto as Exhibit E is a true copy of the Section 45.2 of the DLSE’s Enforcement Policies and Interpretations Manual. | accessed the Manual from the web page http://www.dir.ca.gov/dise/DLSEManual/dlse_enfcmanual.pdf. 7. Attached hereto as Exhibit F is a true copy of the IWC Wage Order No. 5-2001 and Statement as to the Basis. I accessed this document from the web page https://www.dir.ca.gov/iwc/StatementBasis.htm. 8. Attached hereto as Exhibit G is a true copy of the Senate Bill No. 88 (1999-2000 Reg.Sess.). I accessed SB 88 from the web page http://www.leginfo.ca.gov/pub/99-00/bill/sen/sb_0051- 0100/sb_88bill _20000919chaptered.html. 9. Attached hereto as Exhibit H is a true copy of the Senate Bill No. 327. I accessed SB 327 from the web page http://www.leginfo.ca.gov/pub/15-16/bill/sen/sb_0301- 0350/sb_327_bill_20151005_chaptered.pdf. 10. Attached hereto as Exhibit I is a true copy of the Letter from Rep. Michael M. Honda to Gov. Jerry Brown dated October 7, 2015 Re: SB 327 (Hernandez). This letter was authenticated in paragraphs 3-5 in the -9- SMRH:483950340.1 Declaration of Gail Blanchard-Saiger, signed December 3, 2015 (Blanchard-Saiger Declaration). Ms. Blanchard-Saiger’s Declaration was filed in an earlierpetition for review in the California Supreme Courtin Case No. 225205, on December 8, 2015 andis attached hereto. 11. Attached hereto as Exhibit J is a true copy of the Request to Examine Committee Records on Legislation. Orange Coast does not seek judicial notice of this Exhibit but includesit for the Court’s reference (see Blanchard-Saiger Declaration at paragraph 6). 12. Attached hereto as Exhibit K is a true copy of the Minutes of Assembly Committee on Labor and Employment Hearing on September8, 2015 Re SB 327 (Ed Hernandez). These Minutes were authenticated in the Blanchard-Saiger Declaration in paragraphs 6 and 7. 13. Attached hereto as Exhibit L is a true copy ofthe Senate Bill History —- SB 327. This History was authenticated in the Blanchard-Saiger Declaration in paragraph8. 14. Attached hereto as Exhibit M is a true copy of the United Nurses Associations of California/Union of Health Care Professionals and Service Employees International Union Local 121RN AmicusLetter in Support of Review dated April 3, 2015, filed in California Supreme Court Case No. 225205 and served on Sheppard Mullin on April 3, 2015. 15. Attached hereto as Exhibit N is a true copy of the United Nurses Associations of California/Union of Health Care Professionals and Service Employees International Union Local 121RN Amicus Brief, filed in California Supreme Court Case No. 225205 and served on Sheppard Mullin on January 7, 2016. | -10- SMRH:483950340.1 I declare under penalty of perjury under the lawsofthe State of California that the foregoing statements are true and correct. Executed at San Diego, California, on October 12, 2017. . KotPew. legel KARIN DOUGAN VOGEL, -l1- SMRH:483950340.1 5225205 In The Supreme Court of the State of California JAZMINA GERARD, KRISTIANE McELROY AND JEFFREY CARL Plaintiffs and Appellants, Vv. ORANGE COAST MEMORIAL MEDICAL CENTER Defendant and Respondent. On Review From The Court Of Appeal Forthe Fourth Appellate District, Division Three 4th Civil No. G048039 After An Appeal Fromthe Superior Court of Orange County Honorable Nancy WicbenStock, Judge Case Number 30-2008-00096591 DECLARATION OF GAIL BLANCHARD-SAIGER IN SUPPORT OF MOTION FOR JUDICIAL NOTICE SHEPPARD, MULLIN, RICHTER & SHEPPARD, MULLIN; RICHTER & HAMPTONLip HAMPTONLLP *Richard J.Simmons, Cal. Bar No. 72666 Robert J. Stumpf, Jr., Cal. Bar No. 72851 Derek R. Havel, Cal. Bar No. 193464 Karin Dougan Vogel, Cal. Bar No. 131768 Daniel J. McQueen; Cal. Bar No. 217498 Four Embarcadero Center, 17" Floor 650 TownCenter Drive, 4" Floor San Francisco, California 94111 Costa Mesa, California 92626-1993 Tel: 415.434.9100 Tel: 714.513.5100 Attorneys for Defendant and Respondent RECEIVED ORANGE COAST MEMORIAL MEDICAL CENTER ; ; DEC 0.8 2015 CLERK SUPREME COURTP DECLARATION I, Gail Blanchard-Saiger, hereby declare as follows: 1. ~ Iam Vice President, Labor and Employment, of the California Hospital Association (CHA). 1 am makingthis Declaration in support of the Motion for Judicial Notice by Defendant and Respondent Orange Coast Memorial Medical Center. I have personal knowledgeof the matters set forth in this Declaration and would competently testify thereto if called as a witness. 2. CHA represents the interests of hospitals, health systems and other healthcare providers in California. It includes more than 400 hospital and health system members. CHA’s missionis to improve healthcare quality, access and coverage, and create a regulatory environmentthat supports high-quality, cost-effective healthcare services. Consistent with that mission, CHA consults on issues that affect the healthcare industry and advocates on behalf of hospitals, health systems, and other healthcare providers. 3. On October 22, 2015, on behalf of CHA, I wrote to Daniel Alvarez, Secretary of the California Senate, requesting the Senate Rules Committee to furnish me with a copy of all Senate recordsrelating to Senate Bill 327 (D-Hernandez), as amended on September 4, 2015. I have attached a true copy of myletter to this Declaration as Exhibit A. 4, In a letter dated November9, 2015, Mr. Alvarez responded by providing me with 319 pages of "records that are responsive to your request." I have attached a true copy of Mr. Alvarez's letter and the materials he sent me, labelled “Senate 001 ” through “Senate 321,” to this Declaration as Exhibit B. 5. Among the documents I received wasa letter dated October 7, 2015, from the Honorable Michael M. Honda to Governor Edmund “Jerry” G. Brown,Jr., urging him to sign Senate Bill 327. I have attached a true copy of Congressman Honda's letter to this Declaration as Exhibit C. — 6. On October 21, 2015, on behalf of CHA and pursuant to section 9080 of the Government Code, I sent a Request to Examine Committee Records on Legislation to the California Assembly on Rules requesting copies of all Assembly records relating to Senate Bill 327 (2015), as amended on September 4, 2015. I have attached a true copy of my Request to this Declaration as Exhibit D. 7. On October 22, 2015, I received 145 pages of materials from the Assembly Rules Committee in response to my request. I have attached copies of those materials, labelled “Assembly 001” through “Assembly 145,” to this Declaration as Exhibit E. 8. On November 23, 2015, I accessed www.leginfo.ca.gov, the official website maintained by the Legislative Counsel of California SMRH:473795676.kt -2- pursuant to California law. Amongthe materials I viewed on this website was the “Complete Bill History” of SB 327, a true copy of which I have attached to this Declaration as Exhibit F. This Bill History reflects that on September 11, 2015, the Senate approved SB 327 by a vote of 36 ayes and 0 noes and the Assembly approvedit by a vote of 78 ayes and 0 noes.- I declare under penalty of perjury under the laws of the State of California that the foregoing statements are true and correct. Executed at Sacramento, California, on December 3 , 2015. Onabay GAILBLANCHARD-SAIGER SMRH:473795676.1 -3- OF STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 1am employedin the County of San Francisco; I am over the age of eighteen years and not a party to the within entitled action; my business address is 4 Embarcadero Center, 17" Floor, San Francisco, CA 94111-4109. On December8, 2015, I served the following document(s) described as DECLARATION OFGAIL BLANCHARD-SAIGER IN SUPPORT OF MOTIONFOR JUDICIAL NOTICE on Interested party(ies) in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows: SEE ATTACHED LIST BY MAIL: 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 thereonfully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motionof the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. _ STATE: I declare under penalty of perjury underthe lawsof the State of California that the foregoing is true and correct. Executed on December8, 2015 at San Francisco, California. onghe Jaines Livingston SMRH:474009288.1 -l- Mark Yablonovich, Esq. Neda Roshanian, Esq. Michael Coats, Esq. Law Offices of Mark Yablonovich 1875 Century Park East, Ste. 700 Los Angeles, CA 90067 Glenn A. Danas, Esq. Robert Friedl, Esq. Capstone Law APC 1840 Century Park East, Ste. 450 Los Angeles, CA 90067 SMRH:474009288.1 SERVICE LIST ATTORNEYS FOR PLAINTIFF 1 copy ATTORNEYS FOR PLAINTIFF 1 copy PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO I am employed in the County of San Diego; I am over the age of eighteen years and not a party to the within entitled action; my business address is 501 West Broadway, Suite 1900, San Diego, CA 92101. On October 12, 2017, I served the following document(s) described as MOTION FOR JUDICIAL NOTICE IN SUPPORT OF RESPONDENT ORANGE COAST MEMORIAL MEDICAL CENTER’S ANSWERBRIEF ON THE MERITS; DECLARATION OF KARIN DOUGAN VOGEL on interested party(ies) in this action by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows: Mark Yablonovich, Esq. Glenn A. Danas, Esq. Neda Roshanian,Esq. Robert Friedl, Esq. Michael Coats, Esq. Arlene Marie Turinchak Law Offices of Mark Yablonovich Capstone Law APC 1875 Century Park East, Ste. 700 1875 Century Park East, Ste. 1000 Los Angeles, CA 90067 Los Angeles, CA 90067 [x] BY MAIL:I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at San Diego, California in the ordinary course of business. I am aware that on motionofthe party served, service is presumed invalid if postal cancellation date or postage meter date is more than onedayafter date of deposit for mailing in affidavit. STATE: I declare under penalty of perjury under the lawsof the State of California that the foregoing is true and correct. Executed on October 12, 2017 at San Diego, California. Pamela Parker SMRH:483461584.1 -{-