Free Reply to Opposition - District Court of California - California

Case 4:08-cv-03685-CW

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Filed 08/08/2008

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Trenton H. Norris (California State Bar No. 164781) Sarah Esmaili (California State Bar No. 206053) ARNOLD & PORTER LLP 90 New Montgomery Street, Suite 600 San Francisco, CA 94105 Telephone: (415) 356-3000 Facsimile: (415) 356-3099 Email: [email protected] Email: [email protected] Peter L. Zimroth (pro hac vice admission pending) Kent A. Yalowitz (pro hac vice admission pending) Nancy G. Milburn (pro hac vice admission pending) ARNOLD & PORTER LLP 399 Park Avenue New York, NY 10022 Telephone: (212) 715-1000 Facsimile: (212) 715-1399 Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Plaintiff CALIFORNIA RESTAURANT ASSOCIATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No. 08-CV-03685 RS

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CALIFORNIA RESTAURANT ASSOCIATION, Plaintiff,

Reassignment to a United States District Court Judge Pending PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO ADMINISTRATIVE MOTION FOR AN ORDER SETTING EXPEDITED HEARING AND BRIEFING SCHEDULE ON MOTION FOR DECLARATORY RELIEF AND A PRELIMINARY INJUNCTION AND REQUIRING FILING OF STATE COURT MOTION PAPERS [Civil Local Rule 7.11] Complaint filed: July 22, 2008 Notice of Removal filed: August 1, 2008

19 v. 20 21 22 Defendants. 23 24 25 26 27 28 THE COUNTY OF SANTA CLARA and THE SANTA CLARA COUNTY PUBLIC HEALTH DEPARTMENT,

Case No. 08-CV-03685 RS
PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO ADMINISTRATIVE MOTION FOR ORDER SETTING EXPEDITED HEARING AND BRIEFING SCHEDULE ON MOTION FOR PRELIMINARY INJUNCTION

Case 4:08-cv-03685-CW

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Plaintiff California Restaurant Association ("CRA") files this brief reply in order to respond to Defendant County of Santa Clara's ("County's") allegations of strategic delay and forum shopping contained in Defendants' August 8, 2008 Opposition to Plaintiff's Administrative Motion for an Order Setting Expedited Hearing and Briefing Schedule on Motion for Declaratory Relief and a Preliminary Injunction. The Allegation of Delay. As noted on nearly the last line of the County's filing, the challenged ordinance was not enacted by the Santa Clara County Board of Supervisors until June 24, 2008. Declaration of Jennifer Sprinkles in Support of Opposition to Administrative Motion for Expedited Briefing, Para. 7 (Aug. 8, 2008). Less than a month later, in a filing involving multiple declarations and coordination among several member companies, CRA filed suit and sought a preliminary injunction barring enforcement of the ordinance on grounds of federal and state free speech and preemption. The time pressure the County complains about is not a result of CRA's strategic delay but a result of the unreasonably short nine-week period that the County allowed before covered restaurants must comply with the challenged ordinance, even though the County knows it takes a substantial amount of time for the restaurants to do all the things that are necessary to comply. CRA has acted and continues to act with all due haste. The Allegation of Forum Shopping. The County uses the term "forum shopping" but does not explain the unfair advantage that CRA was somehow seeking by suing the County in its own Superior Court. Indeed, of the possible venues available to CRA, that one would appear to offer the least advantage to CRA and the most to the County. The one significant difference is that California state procedure allowed for a hearing on CRA's motion for preliminary injunction on 16 court days' notice, as opposed to the federal rule requiring 35 calendar days' notice. Had CRA filed suit in U.S. District Court, as the County apparently believes it should have, CRA's motion could not have been heard, absent a special schedule, more than a few days before the September 1 effective date of the challenged ordinance. By refusing to briefly stay enforcement of the ordinance (unlike the other two jurisdictions that have faced a similar challenge), by removing the case to federal court on the day before its opposition to CRA's preliminary injunction motion was due, and -1Case No. 08-CV-03685 RS
PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO ADMINISTRATIVE MOTION FOR ORDER SETTING EXPEDITED HEARING AND BRIEFING SCHEDULE ON MOTION FOR PRELIMINARY INJUNCTION

Case 4:08-cv-03685-CW

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by then refusing to agree to an expedited briefing schedule in federal court, the County, and not CRA, is the appropriate target of scrutiny. The County complains that is unable to make any decisions or respond to CRA's motion on the schedule that the Superior Court rules would have required because key personnel are on vacation or not meeting. These are excuses, not reasons, and they do not justify denying CRA a hearing on its federal and state constitutional claims before the ordinance goes into effect.

Respectfully submitted, Dated: August 8, 2008

ARNOLD & PORTER LLP

By:

________________/s/________________ Trenton H. Norris Attorneys for Plaintiff CALIFORNIA RESTAURANT ASSOCIATION

-2Case No. 08-CV-03685 RS
PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO ADMINISTRATIVE MOTION FOR ORDER SETTING EXPEDITED HEARING AND BRIEFING SCHEDULE ON MOTION FOR PRELIMINARY INJUNCTION