Preview
MICHAEL G. COLANTUONO, State Bar No. 143551 E-FILED
MColantuono@chwlaw.us 2/18/2021 6:42 PM
DAVID J. RUDERMAN, State Bar No. 245989 Superior Court of California
DRuderman@chwlaw.us
County of Fresno
EPHRAIM S. MARGOLIN, State Bar No. 322799
By: L Peterson, Deputy
EMargolin@chwlaw.us
COLANTUONO, HIGHSMITH & WHATLEY, PC
420 Sierra College Drive, Suite 140
Grass Valley, California 95945-5091
Telephone: (530) 432-7357
Facsimile: (530) 432-7356
Attorneys for the City of Selma and Defendant
BLANCA E. MENDOZA-NAVARRO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF FRESNO
ll
JIMMIE “JIM” AVALOS, CASE NO. 20CECG03762
12 Unlimited Jurisdiction
Plaintiff,
13 (Case assigned to Hon. Jeffrey Y. Hamilton)
V.
14 CITY OF SELMA AND BLANCA E.
BLANCA E. MENDOZA-NAVARRO, an MENDOZA-NAVARRO’S REQUEST
15 individual; and BRANDI ORTH, in her official FOR JUDICIAL NOTICE IN SUPPORT
capacity as County Clerk/Registrar of Voters of OF EX PARTE APPLICATION TO
16 Fresno County, DISQUALIFY NEAL E. COSTANZO,
COUNSEL FOR PLAINTIFF JIMMIE
17 Defendants. “JIM” AVALOS
18 Complaint Filed: December 28, 2020
19 Hearing Date: February 22, 2021
Time: 8:30 a.m.
20 Dept.: 54
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REQUEST FOR JUDICIAL NOTICE ISO EX PARTE APPLICATION TO DISQUALIFY PLAINTIFF’S COUNSEL
251646.3
Intervenor and Defendant City of Selma and Defendant Blanca E. Mendoza-Navarro
(collectively, the “City”), by and through their attorneys of record, request this Court take judicial
notice under Evidence Code under Evidence Code sections 452 and 453 of this fact:
e That no person named Jimmie, Jim or James Avalos is listed on the website of the
California State Bar as a licensed attorney.
The City also requests judicial notice of the following documents, true and correct copies of which
are attached to the Declaration of City Clerk Reyna Rivera:
A The approved minutes from the Selma City Council meeting of June 18, 2018.
B The approved minutes from the Selma City Council meeting of July 16, 2018.
10 The approved minutes from the Selma City Council meeting of September 16, 2019.
ll Resolution 2020-36R, a Resolution of the City Council of the City of Selma
12 Regarding Ordering an Election, Requesting Consolidation of Election and
13 Determining Payment for Candidate’s Statements, and for Appointment to Office if
14 No One or Only One Person Is Nominated, which the City Council adopted on June
15 15, 2020.
16 City Manager’s/Staff’s Report regarding Item 8 from the June 15, 2020 City Council
17 meeting on the Resolution Ordering the Election listed above.
18 Resolution 2020-78R, a Resolution of the City Council of the City of Selma,
19 California, Reciting the Fact of the Consolidated General Municipal Election Held
20 November 3, 2020, Declaring the Result and Such Other Matters as May Be Provided
21 by Law, which the City Council adopted at the regular meeting of December 7, 2020.
22 City Manager’s/Staff’s Report regarding Item 1.a from the December 7, 2020 City
23 Council meeting on the Resolution Declaring the Result of the City Election listed
24 above.
25 Finally, the City requests judicial notice of the following document, a true and correct copy of which
26 is attached to the Declaration of David J. Ruderman filed concurrently:
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REQUEST FOR JUDICIAL NOTICE ISO EX PARTE APPLICATION TO DISQUALIFY PLAINTIFF’S COUNSEL
251646.3
N Fair Political Practices Commission (“FPPC”) advice letter dated March 10, 2020
regarding FPPC File No. A-00-015 to Jimmy L. Gutierrez from Lawrence T.
Woodlock, Staff Counsel, Legal Division of the FPPC.
That Jimmie Avalos is not listed as a licensed attorney in California is subject to judicial
notice because it is “not reasonably subject to dispute and [is] capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd.
(g).) A search of website of the California State Bar Association, a source of reasonably indisputable
accuracy, indicates this is so. (The State Bar of California, Attorney Search, at
10 (as of Feb. 15, 2021).) When
se ll entering the surname “Avalos” into the search, there six attorneys listed: Christina, Julio, Martina,
12 Megan, Miriam and Sean. None are Jimmie, Jim or James.
13 Exhibits A, B, C, E, F, G and H are subject to notice as legislative enactments issued under
14 the authority of public entity in the United States — the City of Selma. (Evid. Code, § 452, subd. (b);
15 Shapiro v. Bd. of Directors of Centre City Development Corp. (2005) 134 Cal.App.4th 170, 174, fn.
16 2 [taking notice of city resolution]; Evans v. City of Berkeley (2006) 38 Cal.4th 1, 7-9, fns. 2, 5
17 [taking notice of reports to city council].) Exhibit N is subject to notice under Evidence Code section
18 452, subdivision (c), which allows this Court to notice “[o]fficial acts of the legislative, executive,
19 and judicial departments of the United States and of any state of the United States.” (State
20 Compensation Insurance Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 444
21 [taking judicial notice of decisions by California Department of Insurance Commissioner].) All of
22 these exhibits are also subject to notice because they are public records, and thus their existence and
23 contents “are not reasonably subject to dispute and are capable of immediate and accurate
24 determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd.
25 (h); Chambers v. Ashley (1939) 33 Cal.App.2d 390, 391 [taking notice of public records].)
26 The Court should grant judicial of this fact and these exhibits because they are relevant to
27 provide background for the Ex Parte Application to Disqualify and demonstrate Plaintiff's counsel
28 Neal E. Costanzo had an attorney-client relationship with the City of Selma and advised the City on
2
REQUEST FOR JUDICIAL NOTICE ISO EX PARTE APPLICATION TO DISQUALIFY PLAINTIFF’S COUNSEL
251646.3
the election he now challenges on behalf of Plaintiff Jimmie Avalos. The duties to his then-client
and now former client are the basis for the successive and concurrent conflicts of interest that
disqualify him from representing Plaintiff here. (Rules Prof. Conduct, rules 1.7(a) & 1.9.)
The City therefore respectfully requests the Court take judicial notice that no one named
Jimmie, Jim or James Avalos is listed as a licensed attorney in the State of California and also of
Exhibits A, B, C, E, F, G, and H attached to the Declaration of City Clerk Reyna Rivera, and Exhibit
N attached to the Declaration of David J. Ruderman, both filed concurrently herewith.
DATED: February 18, 2021 COLANTUONO, HIGHSMITH &
9 WHATLEY, PC
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se 1 DA vey 2-oo—
MICHAEL G. COLANTUONO
12 DAVID J. RUDERMAN
EPHRAIM S. MARGOLIN
13 Attorneys for City of Selma and Defendant
go BLANCA E. MENDOZA-NAVARRO
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REQUEST FOR JUDICIAL NOTICE ISO EX PARTE APPLICATION TO DISQUALIFY PLAINTIFF’S COUNSEL
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PROOF OF SERVICE
Jimmie “Jim” Avalos y. Blanca E. Mendoza-Navarro, et al.
Fresno County Superior Court, Case No. 20CECG03762
I, Holly M. Mills, declare:
I am 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 address is 420 Sierra College Drive, Suite 140, Grass
Valley, California 95945-5091. My email address is: HMillls@chwlaw.us. On February 18, 2021, I
served the document(s) described as CITY OF SELMA AND BLANCA E. MENDOZA-
NAVARRO’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF EX PARTE
APPLICATION TO DISQUALIFY NEAL E. COSTANZO, COUNSEL FOR PLAINTIFF
JIMMIE “JIM” AVALOS on the interested parties in this action addressed as follows:
Neal E. Costanzo Attorneys for Plaintiff
Michael G. Slater Jimmie “Jim” Avalos
Costanzo & Associates
575 E. Locust Avenue, Suite 115
Fresno, California 93720
10
Telephone: (559) 261-0163
-<
ao i Facsimile: (559) 261-0706
12 Email: ncostanzo@costanzolaw.com
13 Rebekah A. Eropkin Attorneys for Defendant
Deputy County Counsel Brandi Orth, Fresno County
14 Fresno County Counsel Clerk/Registrar of Voters
2220 Tulare Street, Suite 500
15 Fresno, California 93721
16 Telephone: (559) 600-3479
Facsimile: (559) 600-3480
17
Email: reropkin@fresnocountyca.gov
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19 & BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an
agreement of the parties to accept service by e-mail or electronic transmission, by causing the
20 documents to be sent to the persons at the e-mail addresses listed on the service list on
February 18, 2021, from e-mail address: hmills@chwlaw.us. No electronic message or other
21 indication that the transmission was unsuccessful was received within a reasonable time after
the transmission.
22
I declare under penalty of perjury under the laws of the State of California that the above is
23 true and correct.
24 Executed on February 18, 2021, at Grass Valley, California.
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26 Holly M
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REQUEST FOR JUDICIAL NOTICE ISO EX PARTE APPLICATION TO DISQUALIFY PLAINTIFF’S COUNSEL
251646.3
Preview
MICHAEL G. COLANTUONO, State Bar No. 143551 E-FILED MColantuono@chwlaw.us 2/18/2021 6:42 PM DAVID J. RUDERMAN, State Bar No. 245989 Superior Court of California DRuderman@chwlaw.us County of Fresno EPHRAIM S. MARGOLIN, State Bar No. 322799 By: L Peterson, Deputy EMargolin@chwlaw.us COLANTUONO, HIGHSMITH & WHATLEY, PC 420 Sierra College Drive, Suite 140 Grass Valley, California 95945-5091 Telephone: (530) 432-7357 Facsimile: (530) 432-7356 Attorneys for the City of Selma and Defendant BLANCA E. MENDOZA-NAVARRO SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF FRESNO ll JIMMIE “JIM” AVALOS, CASE NO. 20CECG03762 12 Unlimited Jurisdiction Plaintiff, 13 (Case assigned to Hon. Jeffrey Y. Hamilton) V. 14 CITY OF SELMA AND BLANCA E. BLANCA E. MENDOZA-NAVARRO, an MENDOZA-NAVARRO’S REQUEST 15 individual; and BRANDI ORTH, in her official FOR JUDICIAL NOTICE IN SUPPORT capacity as County Clerk/Registrar of Voters of OF EX PARTE APPLICATION TO 16 Fresno County, DISQUALIFY NEAL E. COSTANZO, COUNSEL FOR PLAINTIFF JIMMIE 17 Defendants. “JIM” AVALOS 18 Complaint Filed: December 28, 2020 19 Hearing Date: February 22, 2021 Time: 8:30 a.m. 20 Dept.: 54 21 22 23 24 25 26 27 28 1 REQUEST FOR JUDICIAL NOTICE ISO EX PARTE APPLICATION TO DISQUALIFY PLAINTIFF’S COUNSEL 251646.3 Intervenor and Defendant City of Selma and Defendant Blanca E. Mendoza-Navarro (collectively, the “City”), by and through their attorneys of record, request this Court take judicial notice under Evidence Code under Evidence Code sections 452 and 453 of this fact: e That no person named Jimmie, Jim or James Avalos is listed on the website of the California State Bar as a licensed attorney. The City also requests judicial notice of the following documents, true and correct copies of which are attached to the Declaration of City Clerk Reyna Rivera: A The approved minutes from the Selma City Council meeting of June 18, 2018. B The approved minutes from the Selma City Council meeting of July 16, 2018. 10 The approved minutes from the Selma City Council meeting of September 16, 2019. ll Resolution 2020-36R, a Resolution of the City Council of the City of Selma 12 Regarding Ordering an Election, Requesting Consolidation of Election and 13 Determining Payment for Candidate’s Statements, and for Appointment to Office if 14 No One or Only One Person Is Nominated, which the City Council adopted on June 15 15, 2020. 16 City Manager’s/Staff’s Report regarding Item 8 from the June 15, 2020 City Council 17 meeting on the Resolution Ordering the Election listed above. 18 Resolution 2020-78R, a Resolution of the City Council of the City of Selma, 19 California, Reciting the Fact of the Consolidated General Municipal Election Held 20 November 3, 2020, Declaring the Result and Such Other Matters as May Be Provided 21 by Law, which the City Council adopted at the regular meeting of December 7, 2020. 22 City Manager’s/Staff’s Report regarding Item 1.a from the December 7, 2020 City 23 Council meeting on the Resolution Declaring the Result of the City Election listed 24 above. 25 Finally, the City requests judicial notice of the following document, a true and correct copy of which 26 is attached to the Declaration of David J. Ruderman filed concurrently: 27 28 1 REQUEST FOR JUDICIAL NOTICE ISO EX PARTE APPLICATION TO DISQUALIFY PLAINTIFF’S COUNSEL 251646.3 N Fair Political Practices Commission (“FPPC”) advice letter dated March 10, 2020 regarding FPPC File No. A-00-015 to Jimmy L. Gutierrez from Lawrence T. Woodlock, Staff Counsel, Legal Division of the FPPC. That Jimmie Avalos is not listed as a licensed attorney in California is subject to judicial notice because it is “not reasonably subject to dispute and [is] capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (g).) A search of website of the California State Bar Association, a source of reasonably indisputable accuracy, indicates this is so. (The State Bar of California, Attorney Search, at 10 (as of Feb. 15, 2021).) When se ll entering the surname “Avalos” into the search, there six attorneys listed: Christina, Julio, Martina, 12 Megan, Miriam and Sean. None are Jimmie, Jim or James. 13 Exhibits A, B, C, E, F, G and H are subject to notice as legislative enactments issued under 14 the authority of public entity in the United States — the City of Selma. (Evid. Code, § 452, subd. (b); 15 Shapiro v. Bd. of Directors of Centre City Development Corp. (2005) 134 Cal.App.4th 170, 174, fn. 16 2 [taking notice of city resolution]; Evans v. City of Berkeley (2006) 38 Cal.4th 1, 7-9, fns. 2, 5 17 [taking notice of reports to city council].) Exhibit N is subject to notice under Evidence Code section 18 452, subdivision (c), which allows this Court to notice “[o]fficial acts of the legislative, executive, 19 and judicial departments of the United States and of any state of the United States.” (State 20 Compensation Insurance Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 444 21 [taking judicial notice of decisions by California Department of Insurance Commissioner].) All of 22 these exhibits are also subject to notice because they are public records, and thus their existence and 23 contents “are not reasonably subject to dispute and are capable of immediate and accurate 24 determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. 25 (h); Chambers v. Ashley (1939) 33 Cal.App.2d 390, 391 [taking notice of public records].) 26 The Court should grant judicial of this fact and these exhibits because they are relevant to 27 provide background for the Ex Parte Application to Disqualify and demonstrate Plaintiff's counsel 28 Neal E. Costanzo had an attorney-client relationship with the City of Selma and advised the City on 2 REQUEST FOR JUDICIAL NOTICE ISO EX PARTE APPLICATION TO DISQUALIFY PLAINTIFF’S COUNSEL 251646.3 the election he now challenges on behalf of Plaintiff Jimmie Avalos. The duties to his then-client and now former client are the basis for the successive and concurrent conflicts of interest that disqualify him from representing Plaintiff here. (Rules Prof. Conduct, rules 1.7(a) & 1.9.) The City therefore respectfully requests the Court take judicial notice that no one named Jimmie, Jim or James Avalos is listed as a licensed attorney in the State of California and also of Exhibits A, B, C, E, F, G, and H attached to the Declaration of City Clerk Reyna Rivera, and Exhibit N attached to the Declaration of David J. Ruderman, both filed concurrently herewith. DATED: February 18, 2021 COLANTUONO, HIGHSMITH & 9 WHATLEY, PC 10 8 se 1 DA vey 2-oo— MICHAEL G. COLANTUONO 12 DAVID J. RUDERMAN EPHRAIM S. MARGOLIN 13 Attorneys for City of Selma and Defendant go BLANCA E. MENDOZA-NAVARRO 14 os o< 15 16 2 Oo 17 18 19 20 21 22 23 24 25 26 27 28 3 REQUEST FOR JUDICIAL NOTICE ISO EX PARTE APPLICATION TO DISQUALIFY PLAINTIFF’S COUNSEL 251646.3 PROOF OF SERVICE Jimmie “Jim” Avalos y. Blanca E. Mendoza-Navarro, et al. Fresno County Superior Court, Case No. 20CECG03762 I, Holly M. Mills, declare: I am 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 address is 420 Sierra College Drive, Suite 140, Grass Valley, California 95945-5091. My email address is: HMillls@chwlaw.us. On February 18, 2021, I served the document(s) described as CITY OF SELMA AND BLANCA E. MENDOZA- NAVARRO’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF EX PARTE APPLICATION TO DISQUALIFY NEAL E. COSTANZO, COUNSEL FOR PLAINTIFF JIMMIE “JIM” AVALOS on the interested parties in this action addressed as follows: Neal E. Costanzo Attorneys for Plaintiff Michael G. Slater Jimmie “Jim” Avalos Costanzo & Associates 575 E. Locust Avenue, Suite 115 Fresno, California 93720 10 Telephone: (559) 261-0163 -< ao i Facsimile: (559) 261-0706 12 Email: ncostanzo@costanzolaw.com 13 Rebekah A. Eropkin Attorneys for Defendant Deputy County Counsel Brandi Orth, Fresno County 14 Fresno County Counsel Clerk/Registrar of Voters 2220 Tulare Street, Suite 500 15 Fresno, California 93721 16 Telephone: (559) 600-3479 Facsimile: (559) 600-3480 17 Email: reropkin@fresnocountyca.gov 18 19 & BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, by causing the 20 documents to be sent to the persons at the e-mail addresses listed on the service list on February 18, 2021, from e-mail address: hmills@chwlaw.us. No electronic message or other 21 indication that the transmission was unsuccessful was received within a reasonable time after the transmission. 22 I declare under penalty of perjury under the laws of the State of California that the above is 23 true and correct. 24 Executed on February 18, 2021, at Grass Valley, California. 25 26 Holly M 27 28 4 REQUEST FOR JUDICIAL NOTICE ISO EX PARTE APPLICATION TO DISQUALIFY PLAINTIFF’S COUNSEL 251646.3