Free Motion to Strike - District Court of California - California

Case 3:08-cv-00634-W-AJB

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Filed 04/11/2008

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DALEY & HEFT, ATTORNEYS AT LAW ROBERT W. BROCKMAN, ESQ. (SBN 123546) GOLNAR J. FOZI, ESQ. (SBN 167674) 462 STEVENS AVENUE, SUITE 201 SOLANA BEACH, CA 92075 TELEPHONE: (858) 755-5666 FACSIMILE: (858) 755-7870 Attorneys for Defendants CARLSBAD COMMUNITY CHURCH, TOM WOOD, DICK LEE and FRANCISCO MESQUITA

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

) ) Plaintiff, ) ) v. ) ) CARLSBAD COMMUNITY CHURCH, ) TOM WOOD, DICK LEE, FRANCISCO ) MESQUITA and DOES 1-20, ) ) Defendants. ) ) ) ) ) ) ) ) ___________________________________ )

SONDRA BOONE,

Case No. 08 CV 0634 W AJB REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS CARLSBAD COMMUNITY CHURCH, TOM WOOD, DICK LEE AND FRANCISCO MESQUITA'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED [FRCP 12(b)(6)] AND MOTION TO STRIKE [FRCP 12(f) [No Oral Argument Per Local Rule] DATE: May 12, 2008 TIME: 10:30 a.m. DEPT.: 7 DIST. JUDGE: Thomas J. Whelan MAG. JUDGE: Anthony J. Battalia

Although a court may not normally consider evidence outside of the complaint itself in ruling on a motion to dismiss under FRCP 12(b)(6) , or 12(f) there are limited situations in which a "court may take judicial notice of facts outside the pleadings." (Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (overruled on other grounds by Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104 (1991).) In ruling on such

motions, the Court may consider documents mentioned in the complaint but not attached to the complaint. (Townsend v. Columbia Operations, 667 F.2d 844, 848-849 (9th Cir. 1982).) On a motion to dismiss a court may properly look beyond the complaint to matters of public record.
1 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS CARLSBAD COM M UNITY CHURCH, TOM W OOD, DICK LEE AND FRANCISCO MESQUITA'S MOTION TO DISM ISS FOR FAILURE TO STATE A CLAIM

Case 3:08-cv-00634-W-AJB

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Filed 04/11/2008

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(Mack, supra, 798 F.2d 1282.) The Court may take judicial notice of the contents of public records. (MGIC Indemnity Corporation v. Weisman, 803 F.2d 500 (9th Cir. 1986). Files and determinations of public agencies are subject to judicial notice. (Furnari v. Warden, 218 F.3d, 250 (3rd Cir. 2000); Fornalik v. Perryman, 223 F.3d 523 (7th Cir. 2000).) Here, defendants respectfully request that the Court take judicial notice of the following records of public agencies: Exhibit 1: California Secretary of State, Statement of Information (Domestic

Nonprofit Corporation) for Carlsbad Community Church; Exhibit 2: (Also mentioned in the FAC at paragraph 8 but not attached to the FAC)

Charge of Discrimination filed with the U.S. E.E.O.C. by plaintiff on October 31, 2007; Exhibit 3: (Also mentioned in the FAC at paragraph 8 but not attached to the FAC)

Charge of Discrimination filed with the California DFEH by plaintiff on August 14, 2007.

Dated: April 11, 2008

DALEY & HEFT, LLP

By:/s/ Golnar J. Fozi ROBERT W. BROCKMAN GOLNAR J. FOZI Attorneys for Defendants CARLSBAD COMMUNITY CHURCH, TOM WOOD, DICK LEE and FRANCISCO MESQUITA

2 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS CARLSBAD COM M UNITY CHURCH, TOM W OOD, DICK LEE AND FRANCISCO MESQUITA'S MOTION TO DISM ISS FOR FAILURE TO STATE A CLAIM