Case 2:15-cv-00033-JAK-SH Document 14-1 Filed 02/04/15 Page 1 of 31 Page ID #:184 1 CHRISTI HOGIN, State Bar No. 138649 City Attorney, City of Malibu 2 Trevor Rusin, State Bar No. 241940 Shahiedah Coate~ State Bar No. 258565 3 JENKINS & HOviN, LLP 1230 Rosecrans Avenue, Suite 110 4 Manhattan Beach, CA 90266 (310) 643.844 ~ Fax: (310) 643.8441 5 Bmatl: chogin~ localgovlaw.com 6 Attorneys for the City of Malibu 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 THE PARK AT CROSS CREEK, LLC CASE NO. 2: 15-CV 00033-JAK (SHx) and MALIBU BAY COMPANY, 12 Complaint served: January 5, 2015 13 Plaintiffs, 14 vs. [Assigned to the Hon. John A. Kronstadt] 15 CITY OF MALIBU, A MUNICIPAL CORPORATION, and DOES 1-10, CITY'S REQUEST FOR JUDICIAL 16 NOTICE IN SUPPORT OF MOTION TO DISMISS COMPLAINT [F.R.E. 17 RULE 201] Defendants. 18 DATE: March 30,2015 TIME : 8:30am 19 DEPT.: 750 20 21 22 23 24 25 TO THE HONORABLE JOHN A. KRONSTADT, UNITED STATES DISTRICT 26 COURT JUDGE, PLAINTIFFS AND THEIR ATTORNEYS OF RECORD 27 HEREIN: 28 CITY'S REQUEST FOR JUDICIAL NOTICE Case 2:15-cv-00033-JAK-SH Document 14-1 Filed 02/04/15 Page 2 of 31 Page ID #:185 1 PLEASE TAKE NOTICE that pursuant to Federal Rules of Evidence, Rule 201, 2 Defendant City of Malibu ("City") respectfully requests that this Court take judicial 3 notice of the following adjudicative facts and exhibits in connection with its Motion to 4 Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) 5 1. LEGISLATIVE ENACTMENT: Excerpts from the City of Malibu's 6 General Plan. A certified copy ofthe City ofMalibu General Plan, section 1.4.4 LU 7 Goal4, is attached hereto as Exhibit A. 8 2. INDISPUTABLE FACT: These are examples of California formula retail 9 businesses: 10 A. FACT: SusieCakes LLC has 13 locations which are all in California, as 11 reflected in attached Exhibit B (which is a screenshot of the store locations listed on the 12 company's website www.susiecakes.com, which totall3 locations on January 28, 2015). 13 B. FACT: Fresh Brothers has 12locations which are all in California, as 14 reflected in attached Exhibit C (which is a copy of all store locations listed on the 15 company's website www.freshbrothers.com, a total of 12 stores on January 28, 2015). 16 C. FACT: Mendocino Farms LLC has 9 locations which are all in 17 California, as reflected in attached Exhibit D (which is a copy of all store locations listed 18 on the company's website www.mendocinofarms.com, a total of9 stores on February 3, 19 2015, with a lOth scheduled to open in El Segundo, California). 20 D. FACT: Centinela Feed and Pet Supplies has 15 locations which are all in 21 California, as reflected in attached Exhibit E (which is a copy of all store locations listed 22 on the company's website www.centinelafeed.com, a total of 15 stores on January 28, 23 2015). 24 3. INDISPUTABLE FACT: This is an example of a California-based formula 25 retail business that has locations outside California: Sport Chalet, Inc. its corporate 26 office is in California and has 50 locations, some of which are outside California, as 27 reflected in attached Exhibit F (which is a copy of all store locations listed on the 28 1 CITY'S REQUEST FOR JUDICIAL NOTICE Case 2:15-cv-00033-JAK-SH Document 14-1 Filed 02/04/15 Page 3 of 31 Page ID #:186 1 company's website www.sportchalet.com, a total of 50 stores on January 28, 2015, with 2 a corporate office located in California). 3 These items are a proper subject for judicial notice pursuant to Federal Rules of 4 Evidence, Rule 201 (b)( 1) and (2) as the City's General Plan and the locations of these 5 businesses are facts "generally known within the trial court's jurisdiction" and/or "can 6 be accurately and readily determined from sources whose accuracy cannot reasonably be 7 questioned." 8 Regarding the City's first request and Exhibit A, courts may take judicial notice 9 of city charters, ordinances and resolution. Rabkin v. Dean, 856 F.Supp. 543, 546(N.D. 10 Cal. 1994); Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir. 1977), cert. denied, 434 11 U.S. 968 (1977); MGIC Indemnity Corporation v. Weisman, 803 F.2d 500, 504 (9th Cir. 12 1986)(court may take judicial notice of official records and reports). The City's state- 13 mandated General Plan was adopted by the City Council in accordance with the 14 procedures required by state law. Cal. Gov't Code §§ 65350-65356. In addition, 15 Exhibit A is self-authenticating in accordance with Federal Rules of Evidence, Rule 16 902( 4) as a certified copy of a public record. 17 Regarding the City's second and third requests, courts have takenjudicial notice 18 of a company's location as published on its website as this information is presumptively 19 accurate and not reasonably subject to dispute, especially when the information comes 20 from a company's own website. Allphin v. Peter K. Fitness, LLC, No. 13-CV-01338- 21 BLF, 2014 WL 6997653, at *3 (N.D. Cal. Dec. 11, 2014) (in taking judicial notice of 22 "location" webpages: "it can be presumed that a company, when placing information 23 about its locations on a website, will do so accurately."); see 0 'Toole v. Northrop 24 Grumman Corp., 499 F.3d 1218, 1225 (lOth Cir. 2007). 25 Ill 26 27 28 2 CITY'S REQUEST FOR nJDICIAL NOTICE Case 2:15-cv-00033-JAK-SH Document 14-1 Filed 02/04/15 Page 4 of 31 Page ID #:187 1 This Request for Judicial Notice is made in support of the City's Motion to 2 Dismiss the Complaint and is based upon the attached declaration of Trevor L. Rusin 3 and the exhibits thereto. 4 DATED: February 4, 2015 Respectfully submitted, 5 6 7 8 9 Attorneys for Defendant 10 City of Malibu 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 CITY'S REQUEST FOR JUDICIAL NOTICE Case 2:15-cv-00033-JAK-SH Document 14-1 Filed 02/04/15 Page 5 of 31 Page ID #:188 1 DECLARATION OF TREVOR L. RUSIN 2 I, TREVOR L. RUSIN, declare as follows: 3 1. I am an attorney licensed to practice law in the state of California and 4 before the United States District Court for the Central District of California. I have 5 personal know ledge of all of the facts set forth herein and could and would testify to the 6 accuracy thereof if called upon to do so in a court of law. 7 2. Attached hereto as Exhibit A is a copy of public records, specifically 8 section 1.4.4 LU Goal 4 of the City's General Plan, on file at City Hall that are certified 9 by the City Clerk to be true and correct copies of those documents, which are kept by 10 the City in the regular course of business. 11 4. Attached hereto as Exhibit B is a copy of all store locations listed on 12 SusieCakes LLC's website, www.susiecakes.com, on January 28, 2015. I printed the 13 attached pages by taking screenshots of the website on January 28, 2015, and they truly 14 and accurately reflect the web pages displayed. 15 5. Attached hereto as Exhibit C is a copy of all store locations listed on Fresh 16 Brothers website, www.freshbrothers.com, on January 28, 2015. I printed the attached 17 pages from the website on January 28, 2015, and they truly and accurately reflect the 18 web pages displayed. 19 6. Attached hereto as Exhibit D is a copy of all store locations listed on 20 Mendocino Farms LLC's website, www.mendocinofarms.com, on February 3, 2015. I 21 printed the attached pages from the website on February 3, 2015, and they truly and 22 accurately reflect the web pages displayed. 23 7. Attached hereto as Exhibit E is a copy of all store locations listed on Fresh 24 Brothers website, www.centinelafeed.com, on January 28, 2015. I printed the attached 25 pages from the website on January 28, 2015, and they truly and accurately reflect the 26 web pages displayed. 27 28 4 CITY'S REQUEST FOR TIJDICIAL NOTICE Case 2:15-cv-00033-JAK-SH Document 14-1 Filed 02/04/15 Page 6 of 31 Page ID #:189 1 8. Attached hereto as Exhibit F is a copy of all store locations listed on Sport 2 Chalet, Inc.'s website, www.sportchalet.com, on January 28, 2015. I printed the 3 attached pages from the website on January 28, 2015, and they truly and accurately 4 reflect the web page displayed. 5 I declare under penalty of perjury of the laws of the state of California that the 6 foregoing is true and correct. Executed this 3rd day of February, 2015, in Manhattan 7 Beach, California. 8 9 10 T 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 CITY'S REQUEST FOR JUDICIAL NOTICE Case 2:15-cv-00033-JAK-SH Document 14-1 Filed 02/04/15 Page 7 of 31 Page ID #:190 EXHIBIT A Case 2:15-cv-00033-JAK-SH Document 14-1 Filed 02/04/15 Page 8 of 31 Page ID #:191 LAND USE ELEMENT LU Implementation Measure 60: Minimize destruction of natural areas and, where possible, prohibit trans­ formation of natural areas to commercial ones by limiting development to that which is necessary for public access and safety.