Preview
[Exempt From Filing Fee
Government Code § 6103]
1 MONA G. EBRAHIMI, State Bar No. 236550
mebrahimi(^kmtg.com
2 LESLIE Z. WALKER, State Bar No. 249310
lwalker(^kmtg.com
3 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
A Professional Corporation
4 400 Capitol Mall, 27* Floor
Sacramento, Califomia 95814
5 Telephone: (916) 321-4500
Facsimile: (916) 321-4555 MAY 2 6 2017
6
JONATHAN P. HOBBS, State Bar No. 186045
7 City Attomey By E. Fines, Deputy Clerk
jhobbs(^elkgrovecity.org
8 JENNIFER A. ALVES, State Bar No. 238723
Assistant City Attomey
9 jalves(^elkgrovecity.org
SUZANNE E. KENNEDY, State Bar No. 251339
10 Assistant City Attomey
skennedy(^elkgrovecity. org
11 CITY OF ELK GROVE
Office of the City Attomey
12 8401 Laguna Palms Way
Elk Grove, Califomia 95758
13 Telephone: (916) 683-7111
Facsimile: (916)627-4100
14
Attomeys for Respondent and Defendant CITY
15 OF ELK GROVE
16 SUPERIOR COURT OF THE STATE OF CALIFORNIA
17 COUNTY OF SACRAMENTO
18 STAND UP CALIFORNIA!; PATTY Case No. 34-2016-80002493
JOHNSON; and JOE TEIXEIRA,
19 OBJECTION TO DECLARATION OF
Petitioners and Plaintiffs, ODIN A. SMITH IN SUPPORT OF
20 PETITIONERS' OPPOSITION TO
CITY'S DEMURRER TO PETITIONERS
21 AND PLAINTIFFS' VERIFIED
CITY OF ELK GROVE, AMENDED PETITION FOR WRIT OF
22 MANDATE AND COMPLAINT FOR
Respondent and Defendant. DECLARATORY R E L I E F
23
ELK GROVE TOWN CENTER, LP; Judge: Hon. Shelleyanne W. L; Chang
24 HOWARD HUGHES CORPORATION; and Date: June 23, 2017
DOES 1-20, Time: 10:00 a.m.
25 'Dept.: 24
Real Parties in Interest and
26 ' Defendants. Petition Filed: November 23, 2016
27
28
1571915.3 10784-236 1
OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO
CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE
1 I. INTRODUCTION
2 The City of Elk Grove ("City") objects to the Declaration of Odin A. Smith ("declaration")
3 submitted in conjunction with Petitioners' Opposition to the City's Demurrer and Real Parties in
4 Interest Elk Grove Town Center, LP and Howard Hughes Corporation's Demurrer fo Verified
5 Amended Petition for Writ of Mandate and Complaint for Declaratory Relief ("Petitioners'
6 Opposition"). The declaration, and purported testimony set forth therein, is inadmissible on this
7 demurrer because it improperly seeks to submit evidence which is neither part of Petitioners'
8 challenged pleading, nor subject to judicial notice. The declaration is also defective because it is
9 neither an affidavit nor a declaration signed under penalty of perjury in accordance with the laws
10 of the State of Califomia. The declaration is also inadmissible because it contains statements of
li legal conclusions rather than facts, and contains statements that are without foundation and not
12 based on the personal knowledge of the declarant.
13 For all the reasons presented, the City's objections should be sustained and the declaration
14 should be stricken from these demurrer proceedings.
15 II. L E G A L ARGUMENT
16 A. The declaration is improperly submitted as evidence on a demurrer, as it is neither
part of Petitioners' pleading, nor the proper subject of judicial notice
17
On demurrer, the court considers the face of the challenged pleading and matters that are
18
subject to judicial notice. (Code Civ. Proc, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311,
19
318.) Petitioners ignore this fundamental and well-settled mle of law in seeking to inject
20
substantive declaration testimony on this demurrer. The purported testimony is improper, and
21
should be disregarded on this demurrer.
22
B. The declaration fails the requirements of Code of Civil Procedure section 2015.5 and
23 should be disregarded
24 Code of Civil Procedure section 2015.5 sets forth the form in which a declaration or
25 affidavit must comply. Among the requirements, a declarant must certify under "under penalty bf
26 peijiiry under the laws of the State of Califomia that the foregoing is tme and correct." (Id.) No
27 such statement was made in Mr. Odin's declaration. Mr. Odin's declaration states " I am familiar
28 wdth the matter set forth herein and if called as a witness, I could and would competently testify
1571915.3 10784-236 2
OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO
CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE
1 thereto" and ends with "Executed within the United States this 15"" day of May, 2017." (Decl.
2 Smith 1. 13). (Emphasis added.)
3 Absent compliance with Code of Civil Procedure section 2015.5, the statements made by
4 Mr. Smith are inadmissible hearsay. {Kulshrestha v. First Union Commercial Corporation (2004)
5 33 Cal.4th 601 (^"Kulshrestha") (Critical here is Section 2015.5, which defines a "declaration" as a
6 writing that is signed, dated, and certified as tme urider penalty of perjury. In addition. Section
.7 2015.5 specifies that a declaration must either reveal a "place of execution" within Califomia, or
8 recite that it is made "under the laws of the State of Califomia").) In Kulshrestha, the court
9 underscored the importance of compliance with the statute by stating, "Section 2015.5 seeks to
10 enhance the reliability of all declarations used as hearsay evidence by disclosing the sanction for
11 dishonesty. Thus, the statute requires some acknowledgement on the face of the declaration that
12 perjured statements might trigger prosecution Ca///brma/aw." (Id. at 605.) (Emphasis in
13 the original!).
14 Nowhere does Mr. Smith make an effort to bind himself to the "penalty of perjury under
15 the laws ofthe State of Califomia." Compliance with.Code of Civil Procedure section 2015.5
16 does not exist, and the declaration should be disregarded in its entirety.
17 C. The declaration improperly contains legal conclusions, not evidentiary facts
18 The purported declaration is replete with legal conclusions. Mr. Smith presents improper
19 legal conclusions as to the requirements of the Code of Federal Regulations, decisions made by
20 the Secretary of the Interior or other officials at the Bureau of Indian Affairs, the legal effect of
21 certain documents, and the validity of an alleged pending federal administrative appeal. (Decl.
22 Smith t t 3,4, 5, 7, 9, 13.) (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108,1120
23 (affidavits and declarations must cite evidentiary facts, not legal conclusions or ultimate facts).)
24 This is improper and the declaration should be disregarded.
25 D. The declaration contains statements that are without foundation and not based on
the personal knowledge of the declarant ^
26
27 Evidence Code section 702(a) provides that "Subject to Section 801, the testimony of a
28 witness conceming a particular matter is inadmissible unless he has personal knowledge of the
1571915.3 10784-236 3
OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO
CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE
1 matter. Against the objection of a party, such personal knowledge must be shown before the
2 witness may testify conceming the matter." The declaration fails to attest to Mr. Smith's personal
3 knowledge, but rather attests that the declarant "is familiar with" the matters set forth herein. This
4 is insufficient and objectionable hearsay testimony. The declaration should be disregarded.
5 III. CONCLUSION
6 For the foregoing reasons, the purported declaration of Odin A. Smith is improper. The
7 City requests that its objection to the declaration be sustained and the declaration disregarded on
8 this demurrer.
9
Dated: May 26, 2017 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
10 A Professional Corporation
11
12
By: "^.m
13 Mona G^, Ebrahimi
Attorneys for Respondent and Defendant CITY
14 OF ELK GROVE
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1571915.3 10784-236
OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO
CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
3 At the time of service, I was over ,18 years of age and not a party to this action. I am
employed in the County of Sacramento, State of Califomia. My business address is 400 Capitol
4 Mall, 27th Floor, Sacramento, CA 95814.
5 On May 26, 2017,1 served tme copies of the following document(s) described as
OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF
6 PETITIONERS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND
PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND
7 COMPLAINT FOR DECLARATORY RELIEF on the interested parties in this action as
follows:
8
SEE ATTACHED SERVICE LIST
9
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
10 document(s) to be sent from e-mail address emay@kmtg.com to the persons at the e-mail
addresses listed in the Service List. I did not receive, within a reasonable time after the
11 transmission, any electronic message or other indication that the transmission was unsuccessful.
12 BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx
and addressed to the persons at the addresses listed in the Service List.. I placed the envelope or
13 package for collection and ovemight delivery at an office or a regularly utilized drop box of FedEx
or delivered such document(s) to a courier or driver authorized by FedEx to receive documents.
14
I declare under penalty of perjury under the laws of the State of Califomia that the
15 foregoing is tme and correct.
16 Executed on May 26, 2017, at Sacramento, Califomia.
17
18
Deborah Clark
19
20
21
22
23
24
25
26
27
28
1571915.3 10784-236
OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO
CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE
1 SERVICE LIST
2
3 Brigit S. Bames Jonathan P. Hobbs, City Attomey
Annie R. Embree Jennifer A. Alves, Asst. City Attomey
4 Brigit S. Bames & Associates, Inc. Suzanne Kennedy, Asst. City Attomey
3262 Penryn Road City of Elk Grove
5 Loomis, CA 95650 Office of the City Attomey
Telephone: (916)660-9555 8401 Laguna Palms Way
6 Facsimile: (916)660-9554 Elk Grove, CA 95758
Email: bsbames(a),landlawbybames.com Telephone: (916) 683-7111
7 arembree@landlawbvbarnes.com Facsimile: (916)627-4100
Email: ihobbs@elkgrovecitv.org
8 Attorneys for Petitioners and PlaintifTs ialves@elkgrovecity.org
skennedy@elkgrovecity.org
9
Attorneys for Respondent and Defendant
10
Scott M. Pearson
11 Taylor R. Steinbacher
Zaven A. Sargsian
12 Ballard Spahr LLP
2029 Century Park East, Suite 800
13 Los Angeles, CA 90067-2909
Telephone: (424) 204-4323
14 Facsimile: (424) 204-4350
Email: pearsons(5).ballardspahr.com
15 steinbachert(5),ballardspahr.com
sargsianz@ballardspahr.com
16
Attorneys for Real Parties in Interest and
17 Defendants
18
19
20
21
22
23
24
25
26
27
28
1571915.3 10784-236
OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO
CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE
Preview
[Exempt From Filing Fee Government Code § 6103] 1 MONA G. EBRAHIMI, State Bar No. 236550 mebrahimi(^kmtg.com 2 LESLIE Z. WALKER, State Bar No. 249310 lwalker(^kmtg.com 3 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD A Professional Corporation 4 400 Capitol Mall, 27* Floor Sacramento, Califomia 95814 5 Telephone: (916) 321-4500 Facsimile: (916) 321-4555 MAY 2 6 2017 6 JONATHAN P. HOBBS, State Bar No. 186045 7 City Attomey By E. Fines, Deputy Clerk jhobbs(^elkgrovecity.org 8 JENNIFER A. ALVES, State Bar No. 238723 Assistant City Attomey 9 jalves(^elkgrovecity.org SUZANNE E. KENNEDY, State Bar No. 251339 10 Assistant City Attomey skennedy(^elkgrovecity. org 11 CITY OF ELK GROVE Office of the City Attomey 12 8401 Laguna Palms Way Elk Grove, Califomia 95758 13 Telephone: (916) 683-7111 Facsimile: (916)627-4100 14 Attomeys for Respondent and Defendant CITY 15 OF ELK GROVE 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA 17 COUNTY OF SACRAMENTO 18 STAND UP CALIFORNIA!; PATTY Case No. 34-2016-80002493 JOHNSON; and JOE TEIXEIRA, 19 OBJECTION TO DECLARATION OF Petitioners and Plaintiffs, ODIN A. SMITH IN SUPPORT OF 20 PETITIONERS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS 21 AND PLAINTIFFS' VERIFIED CITY OF ELK GROVE, AMENDED PETITION FOR WRIT OF 22 MANDATE AND COMPLAINT FOR Respondent and Defendant. DECLARATORY R E L I E F 23 ELK GROVE TOWN CENTER, LP; Judge: Hon. Shelleyanne W. L; Chang 24 HOWARD HUGHES CORPORATION; and Date: June 23, 2017 DOES 1-20, Time: 10:00 a.m. 25 'Dept.: 24 Real Parties in Interest and 26 ' Defendants. Petition Filed: November 23, 2016 27 28 1571915.3 10784-236 1 OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE 1 I. INTRODUCTION 2 The City of Elk Grove ("City") objects to the Declaration of Odin A. Smith ("declaration") 3 submitted in conjunction with Petitioners' Opposition to the City's Demurrer and Real Parties in 4 Interest Elk Grove Town Center, LP and Howard Hughes Corporation's Demurrer fo Verified 5 Amended Petition for Writ of Mandate and Complaint for Declaratory Relief ("Petitioners' 6 Opposition"). The declaration, and purported testimony set forth therein, is inadmissible on this 7 demurrer because it improperly seeks to submit evidence which is neither part of Petitioners' 8 challenged pleading, nor subject to judicial notice. The declaration is also defective because it is 9 neither an affidavit nor a declaration signed under penalty of perjury in accordance with the laws 10 of the State of Califomia. The declaration is also inadmissible because it contains statements of li legal conclusions rather than facts, and contains statements that are without foundation and not 12 based on the personal knowledge of the declarant. 13 For all the reasons presented, the City's objections should be sustained and the declaration 14 should be stricken from these demurrer proceedings. 15 II. L E G A L ARGUMENT 16 A. The declaration is improperly submitted as evidence on a demurrer, as it is neither part of Petitioners' pleading, nor the proper subject of judicial notice 17 On demurrer, the court considers the face of the challenged pleading and matters that are 18 subject to judicial notice. (Code Civ. Proc, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 19 318.) Petitioners ignore this fundamental and well-settled mle of law in seeking to inject 20 substantive declaration testimony on this demurrer. The purported testimony is improper, and 21 should be disregarded on this demurrer. 22 B. The declaration fails the requirements of Code of Civil Procedure section 2015.5 and 23 should be disregarded 24 Code of Civil Procedure section 2015.5 sets forth the form in which a declaration or 25 affidavit must comply. Among the requirements, a declarant must certify under "under penalty bf 26 peijiiry under the laws of the State of Califomia that the foregoing is tme and correct." (Id.) No 27 such statement was made in Mr. Odin's declaration. Mr. Odin's declaration states " I am familiar 28 wdth the matter set forth herein and if called as a witness, I could and would competently testify 1571915.3 10784-236 2 OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE 1 thereto" and ends with "Executed within the United States this 15"" day of May, 2017." (Decl. 2 Smith 1. 13). (Emphasis added.) 3 Absent compliance with Code of Civil Procedure section 2015.5, the statements made by 4 Mr. Smith are inadmissible hearsay. {Kulshrestha v. First Union Commercial Corporation (2004) 5 33 Cal.4th 601 (^"Kulshrestha") (Critical here is Section 2015.5, which defines a "declaration" as a 6 writing that is signed, dated, and certified as tme urider penalty of perjury. In addition. Section .7 2015.5 specifies that a declaration must either reveal a "place of execution" within Califomia, or 8 recite that it is made "under the laws of the State of Califomia").) In Kulshrestha, the court 9 underscored the importance of compliance with the statute by stating, "Section 2015.5 seeks to 10 enhance the reliability of all declarations used as hearsay evidence by disclosing the sanction for 11 dishonesty. Thus, the statute requires some acknowledgement on the face of the declaration that 12 perjured statements might trigger prosecution Ca///brma/aw." (Id. at 605.) (Emphasis in 13 the original!). 14 Nowhere does Mr. Smith make an effort to bind himself to the "penalty of perjury under 15 the laws ofthe State of Califomia." Compliance with.Code of Civil Procedure section 2015.5 16 does not exist, and the declaration should be disregarded in its entirety. 17 C. The declaration improperly contains legal conclusions, not evidentiary facts 18 The purported declaration is replete with legal conclusions. Mr. Smith presents improper 19 legal conclusions as to the requirements of the Code of Federal Regulations, decisions made by 20 the Secretary of the Interior or other officials at the Bureau of Indian Affairs, the legal effect of 21 certain documents, and the validity of an alleged pending federal administrative appeal. (Decl. 22 Smith t t 3,4, 5, 7, 9, 13.) (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108,1120 23 (affidavits and declarations must cite evidentiary facts, not legal conclusions or ultimate facts).) 24 This is improper and the declaration should be disregarded. 25 D. The declaration contains statements that are without foundation and not based on the personal knowledge of the declarant ^ 26 27 Evidence Code section 702(a) provides that "Subject to Section 801, the testimony of a 28 witness conceming a particular matter is inadmissible unless he has personal knowledge of the 1571915.3 10784-236 3 OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE 1 matter. Against the objection of a party, such personal knowledge must be shown before the 2 witness may testify conceming the matter." The declaration fails to attest to Mr. Smith's personal 3 knowledge, but rather attests that the declarant "is familiar with" the matters set forth herein. This 4 is insufficient and objectionable hearsay testimony. The declaration should be disregarded. 5 III. CONCLUSION 6 For the foregoing reasons, the purported declaration of Odin A. Smith is improper. The 7 City requests that its objection to the declaration be sustained and the declaration disregarded on 8 this demurrer. 9 Dated: May 26, 2017 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 10 A Professional Corporation 11 12 By: "^.m 13 Mona G^, Ebrahimi Attorneys for Respondent and Defendant CITY 14 OF ELK GROVE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1571915.3 10784-236 OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SACRAMENTO 3 At the time of service, I was over ,18 years of age and not a party to this action. I am employed in the County of Sacramento, State of Califomia. My business address is 400 Capitol 4 Mall, 27th Floor, Sacramento, CA 95814. 5 On May 26, 2017,1 served tme copies of the following document(s) described as OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF 6 PETITIONERS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS AND PLAINTIFFS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE AND 7 COMPLAINT FOR DECLARATORY RELIEF on the interested parties in this action as follows: 8 SEE ATTACHED SERVICE LIST 9 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the 10 document(s) to be sent from e-mail address emay@kmtg.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the 11 transmission, any electronic message or other indication that the transmission was unsuccessful. 12 BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx and addressed to the persons at the addresses listed in the Service List.. I placed the envelope or 13 package for collection and ovemight delivery at an office or a regularly utilized drop box of FedEx or delivered such document(s) to a courier or driver authorized by FedEx to receive documents. 14 I declare under penalty of perjury under the laws of the State of Califomia that the 15 foregoing is tme and correct. 16 Executed on May 26, 2017, at Sacramento, Califomia. 17 18 Deborah Clark 19 20 21 22 23 24 25 26 27 28 1571915.3 10784-236 OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE 1 SERVICE LIST 2 3 Brigit S. Bames Jonathan P. Hobbs, City Attomey Annie R. Embree Jennifer A. Alves, Asst. City Attomey 4 Brigit S. Bames & Associates, Inc. Suzanne Kennedy, Asst. City Attomey 3262 Penryn Road City of Elk Grove 5 Loomis, CA 95650 Office of the City Attomey Telephone: (916)660-9555 8401 Laguna Palms Way 6 Facsimile: (916)660-9554 Elk Grove, CA 95758 Email: bsbames(a),landlawbybames.com Telephone: (916) 683-7111 7 arembree@landlawbvbarnes.com Facsimile: (916)627-4100 Email: ihobbs@elkgrovecitv.org 8 Attorneys for Petitioners and PlaintifTs ialves@elkgrovecity.org skennedy@elkgrovecity.org 9 Attorneys for Respondent and Defendant 10 Scott M. Pearson 11 Taylor R. Steinbacher Zaven A. Sargsian 12 Ballard Spahr LLP 2029 Century Park East, Suite 800 13 Los Angeles, CA 90067-2909 Telephone: (424) 204-4323 14 Facsimile: (424) 204-4350 Email: pearsons(5).ballardspahr.com 15 steinbachert(5),ballardspahr.com sargsianz@ballardspahr.com 16 Attorneys for Real Parties in Interest and 17 Defendants 18 19 20 21 22 23 24 25 26 27 28 1571915.3 10784-236 OBJECTION TO DECLARATION OF ODIN A. SMITH IN SUPPORT OF PETITIONERS' OPPOSITION TO CITY'S DEMURRER TO PETITIONERS' VERIFIED AMENDED PETITION FOR WRIT OF MANDATE