Free Motion to Dismiss - District Court of California - California

Case 3:07-cv-02170-LAB-LSP

Document 5-3

Filed 12/28/2007

Page 1 of 3

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

DARLENE A. DORNAN, Court Counsel (State Bar No. 182228) Superior Court of California, County of San Diego By CHERYL L. BRIERTON, Litigation Attorney (State Bar No. 108242) 220 West Broadway San Diego, California 92101 Telephone: (619) 531-3036 Facsimile: (619) 685-6606 Attorneys for Defendant, Martha Flores, Court Operations Clerk of the Superior Court of California, County of San Diego (Erroneously sued and served as "San Diego Appeals Clerk Martha Flores") UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) Case No.: 07-CV-02170-JLS-LSP ) ) REQUEST FOR JUDICIAL NOTICE IN ) SUPPORT OF DEFENDANT STATE Plaintiff, ) TRIAL COURT CLERK'S MOTION TO ) DISMISS THE COMPLAINT WITH ) PREJUDICE v. ) ) [No Oral Argument Requested] CITY OF SAN DIEGO ET AL., ) ) Date: February 15, 2008 ) Time: 10:30 a.m. Defendants. ) Crtrm: 6, Third Floor ) Judge: The Hon. Janis L. Sammartino ) Defendant, Martha Flores, Court Operations Clerk of the Superior Court of MARK DARULIS, California, County of San Diego ("California State Trial Court"), hereby requests notice of the following exhibits (see Fed. R. of Evid. 201; and e.g., Henson v. CSC Cred. Servs., 29 F.3d. 280 (7th Cir. 1994) [District Court properly considered public court documents filed in earlier state court case in deciding defendants' motion to dismiss, since district court may take judicial notice of matters of public record without converting rule 12(b)(6) motion into motion for summary judgment]; In re Phillips, 593 F.2d. 356 (8th Cir. 1979) [Bankruptcy judge did not err in taking judicial notice of state court petition against bankrupt in order to

REQUEST FOR JUDICIAL NOTICE ­ 1 07cv02170JLS(LSP)

Case 3:07-cv-02170-LAB-LSP

Document 5-3

Filed 12/28/2007

Page 2 of 3

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

determine nature of debt created by resulting default judgment against bankrupt]; Schweitzer v. Scott, 469 F.Supp. 1017 (C.D. Cal. 1979) [court is empowered to take judicial notice of court files and records]). There is "ample authority . . . which recognizes that matters of public record, including court records in related or underlying cases which have a direct relation to the matters at issue, may be looked to when ruling on a 12(b)(6) motion to dismiss." Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach (In re American Continental Corporation/Lincoln S&L Secs. Litig.), 102 F.3d 1524, 1537 (9th Cir. 1996), rev'd on other grounds, 523 U.S. 26, 140 L. Ed. 2d 62, 118 S. Ct. 956 (1998). Exhibit A: Order by Judge Mason dated June 26, 2007, in People of the State of California v. Mark Darulis, California State Trial Court No. 0207418; Exhibit B: Minutes of No Contest Plea on March 6, 2006 in People of the State of California v. Mark Darulis, California State Trial Court No. 0207418; Exhibit C: Order of the Appellate Division of the California Court dated February 16, 2007, in People of the State of California v. Mark Darulis, California Superior Court Appellate Division Case No. 201090 (California State Trial Court No. 0207418); Exhibit D: Remittitur issued March 16, 2007 in People of the State of California v. Mark Darulis, California Superior Court Appellate Division Case No. 201090 (California State Trial Court No. 0207418);

REQUEST FOR JUDICIAL NOTICE ­ 2 07cv02170JLS(LSP)

Case 3:07-cv-02170-LAB-LSP

Document 5-3

Filed 12/28/2007

Page 3 of 3

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

Exhibit E:

Order dated March 28, 2007 by the California Court of Appeal, denying petition for transfer in Docket No. D050553, People of the State of California v. Mark Darulis (California Superior Court Appellate Division Case No. 201090, California State Trial Court No. 0207418);

Exhibit F:

Minutes of May 23, 2007 (erroneously dated May 23, 2006) in People of the State of California v. Mark Darulis, California State Trial Court No. 0207418;

Exhibit G: "Notice of Appeal from an Order dated May 23, 2007" (erroneously dated May 21, 2007) relating to People of the State of California v. Mark Darulis, California State Trial Court No. 0207418; Exhibit H: Complaint in Mark Darulis v. City of San Diego et al., United States District Court, Southern District of California, Case No.: 07-CV-2170-JLS-LSP. Respectfully submitted, DARLENE A. DORNAN, Court Counsel Superior Court of California, County of San Diego DATED: By: ___s/ Cheryl L. Brierton_________________ CHERYL L. BRIERTON, Litigation Attorney Attorney for Defendant, Martha Flores, Court Operations Clerk of the Superior Court of California, County of San Diego

24 25 26 27 28

December 28, 2007

REQUEST FOR JUDICIAL NOTICE ­ 3 07cv02170JLS(LSP)