Free Reply - District Court of California - California

Case 3:07-cv-02174-H-BLM

Document 81

Filed 04/01/2008

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CENTER FOR PUBLIC INTEREST LAW UNIVERSITY OF SAN DIEGO SCHOOL OF LAW ROBERT C. FELLMETH, SBN 49897 [email protected] ED HOWARD, SBN 151936 JULIANNE D'ANGELO FELLMETH, SBN: 109288 5998 Alcala Park San Diego, CA 92110 Telephone: (619) 260-4806 Facsimile: (619) 260-4753 SULLIVAN HILL LEWIN REZ & ENGEL A Professional Law Corporation DONALD G. REZ, SBN 82615 [email protected] 550 West "C" Street, Suite 1500 San Diego, CA 92101 Telephone: (619) 233-4100 Facsimile: (619) 231-4372 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA MICHAEL SHAMES; GARY GRAMKOW, on behalf of themselves and on behalf of all persons similarly situated, Plaintiffs, v. THE HERTZ CORPORATION, et al., Defendants. DATE: TIME: JUDGE: CTRM: April 1, 2008 10:30 a.m. Honorable Marilyn L. Huff 13 Case No. 07CV2174H(BLM) CLASS ACTION RESPONSE TO DEFENDANT CALIFORNIA TRAVEL AND TOURISM COMMISSION'S OBJECTION TO THE DECLARATION OF DONALD G. REZ IN SUPPORT OF REPLY RE MOTION FOR PRELIMINARY INJUNCTION HULETT HARPER STEWART LLP DENNIS STEWART, SBN: 99152 [email protected] JENNIFER A. KAGAN, SBN: 234554 [email protected] 550 West C Street, Suite 1600 San Diego, CA 92101 Telephone: (619) 338-1133 Facsimile: (619) 338-1139

Case 3:07-cv-02174-H-BLM

Document 81

Filed 04/01/2008

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff Michael Shames ("Plaintiff") submits this response to Defendant California Travel and Tourism Commission's Objection to the Declaration of Donald G. Rez in Support of Reply Re Motion for Preliminary Injunction. The Rez Declaration was submitted in direct response to arguments presented for the first time in the California Travel and Tourism Commission's ("CTTC") opposition to Plaintiff's motion for preliminary injunction. Plaintiff filed his motion for preliminary injunction on

November 29, 2007. On December 11, 2007, the parties submitted a joint motion for interim order, resolving the issues raised in the motion pending final resolution of the motion. The Court granted the parties' motion on December 12, 2007. On December 19, 2007, in light of the interim order and because the parties hoped to permanently resolve the issues in the motion, the parties requested a continuance of the January 7, 2008 hearing. The Court granted the parties' request on December 20, 2007. On January 10, 2008, for the same reasons, the parties submitted a joint motion to continue the February 4, 2008 hearing, which the Court granted on January 16. On February 15, 2008, the parties submitted a joint motion to continue the March 10, 2008 hearing, which the Court granted on February 20, 2008. Finally, on March 14, 2008, the CTTC submitted its opposition, three and a half months after the original motion was filed. In its opposition, the CTTC raised the issue of its involvement in the alleged conspiracy as a matter of jurisdiction. See Opp. at 5­12. In addition to responding to Plaintiff's assertion of violations of the Bagley-Keene Act, the CTTC opposed the preliminary injunction motion on the ground that it assertedly was uninvolved in the alleged antitrust offense and for that reason, the Bagley-Keene Act claim is not a proper pendent action, and that Plaintiff lacks standing. For example, the CTTC's opposition asserts that "this is a state law matter unrelated to the alleged federal anti-trust claim," (Opp. at 2), that "the Motion fails to make any connection to the federal claim at all," (Opp. at 5), and that "Plaintiff fails to allege a concrete injury or a causal connection between his claims and the conduct of the CTTC," (Opp. at 9). In response to these arguments, Plaintiff is certainly permitted to rebut the asserted lack of connection raised by the CTTC in its response. This is the purpose of a reply. Moreover, the CTTC can hardly raise surprise or ignorance of any of the evidence. The 1 07CV2174H(BLM)

Case 3:07-cv-02174-H-BLM

Document 81

Filed 04/01/2008

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

evidence submitted consists of e-mails and public documents showing the CTTC's direct participation in the events that it claims are unrelated to it, evidence which was in its possession at the time of its opposition. Rather than ignore such evidence in its opposition in the hopes that Plaintiff would not bring it before the Court, the CTTC could have not made the argument this evidence so clearly refutes or have raised it itself. Having been caught making a somewhat specious argument in its opposition, it now cries foul because Plaintiff met its argument in its reply. The evidence shows that, for example, beyond the parameters of AB 2592, the CTTC circulated a ballot to the Rental Car Defendants, seeking a vote on whether the assessment would be "collected by each passenger car rental company," (Rez Decl., Ex. E (emphasis added)), and that there were related discussions at the October 3, 2006 CTTC Executive Committee meeting, (Rez Decl., Exs. F, G). The evidence also shows that the CTTC was intimately involved in facilitating the price fix and that this information was likely discussed at CTTC meetings. Rez Decl., Ex. A. While the CTTC cites to cases in which courts generally state that new arguments or evidence should not be submitted in reply briefs, the CTTC ignores the fact that the law allows parties to respond to issues raised in oppositions. In fact, in El Pollo Loco v. Hashim, 316 F.3d 1032 (9th Cir. 2003), a case upon which the CTTC relies, the court stated: EPL's discovery rule argument was "raised for the first time in the reply brief," because EPL was responding to Hashim's argument that EPL's complaint was time-barred. Denying EPL the opportunity to counter this potentially dispositive argument would have effectively stripped EPL of its right to argue against Hashim's defense. Id. at 1040; see also Edwards v. Toys "R" Us, 527 F. Supp. 2d 1197, 1205 n.31 (C.D. Cal. 2007) ("Evidence is not `new,' however, if it is submitted in direct response to proof adduced in opposition to a motion."). Furthermore, the CTTC has not even made an offer of proof as to how the evidence submitted is inaccurate, lacks foundation, or is subject to qualification, exception or doubt.

-2-

Case 3:07-cv-02174-H-BLM

Document 81

Filed 04/01/2008

Page 4 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

For these reasons, Plaintiff respectfully requests that the Court overrule the CTTC's objection. DATED: April 1, 2008 HULETT HARPER STEWART LLP DENNIS STEWART JENNIFER A. KAGAN

/s/ Dennis Stewart________________________ DENNIS STEWART 550 West C Street, Suite 1600 San Diego, CA 92101 Telephone: (619) 338-1133 Facsimile: (619) 338-1139

CENTER FOR PUBLIC INTEREST LAW UNIVERSITY OF SAN DIEGO SCHOOL OF LAW ROBERT C. FELLMETH ED HOWARD JULIANNE D'ANGELO FELLMETH 5998 Alcala Park San Diego, CA 92110 Telephone: (619) 260-4806 Facsimile: (619) 260-4753 SULLIVAN, HILL, LEWIN, REZ & ENGEL A Professional Law Corporation DONALD G. REZ 550 West "C" Street, Suite 1500 San Diego, CA 92101 Telephone: (619) 233-4100 Facsimile: (619) 231-4372 Attorneys for Plaintiffs

-3-