Free Request for Judicial Notice - District Court of California - California

Case 3:07-cv-04776-JL

Document 89

Filed 06/23/2008

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CARLETON L. BRIGGS, SBN 117361 Law Offices of Carleton L. Briggs 3510 Unocal Place, Suite 209 Santa Rosa, CA 95403-0918 Telephone: (707) 523-2251 Facsimile: (707) 523-2253 E-mail: [email protected] James E. Rice, SBN 213670 GINES & RICE 2319 Polk Street Caldwell, Idaho 83605 Telephone: (208) 455-2302 Facsimile: (208) 377-8722 E-mail: [email protected] Attorneys for Defendant GREENSPRINGS BAPTIST CHRISTIAN FELLOWSHIP TRUST UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BARBARA MILLER, individually and as guardian ad litem of Molly Miller, an individual; ANNE MILLER, an individual; and ROBERT MILLER, an individual, Plaintiffs, vs. GREENSPRINGS BAPTIST CHRISTIAN FELLOWSHIP TRUST, et al., Defendants. Case No. C 07-04776 JL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT GREENSPRINGS' REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED [F.R.C.P. 12(b)(6)] _________________________________ Date: July 9, 2008 Time: 9:30 a.m. Courtroom: F, 15th Floor Chief Magistrate Judge: Hon. James Larson Complaint filed: August 17, 2007 First Amended Complaint filed: March 28, 2008 Trial date: None

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Defendant Greensprings Baptist Christian Fellowship Trust ("Greensprings") hereby requests that the Court take judicial notice, under Rule 201 of the Federal Rules of Evidence, of the matter herein discussed. A matter that is properly the subject of judicial

1 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT GREENSPRINGS' REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS

Case 3:07-cv-04776-JL

Document 89

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notice may be considered along with the complaint when deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6). MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). The court may take judicial notice of official records and reports without converting a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 16, 19 (1st Cir. 2003). Defendant Greensprings asks the Court to take judicial notice of the following: Current corporate records of the California Secretary of State, publicly accessible on the Secretary of State's official website, identify the Robert C. and Barbara P. Miller Family Foundation, Corporation No. 1917832, with its status listed as "suspended." See Exhibit A attached hereto and by reference made a part hereof. Federal Rule of Evidence 201(b) permits judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Judicial notice of action by a government agency may properly be taken where the action is officially published and thus ascertainable and verifiable. Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 & fn. 9 (5th Cir. 2005) (judicial notice properly taken of union's status as certified collective bargaining representative where administrative action approving certification published in official administrative agency reporter); Island Software & Computer Service, Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2nd Cir. 2005) (judicial notice properly taken of federal copyright registrations published in Copyright Office's registry). During the period of a corporation's suspension, the only permissible corporate action is filing an application for tax-exempt status or amending the articles to perfect that application or to set forth a new corporate name. Otherwise, the corporation is disqualified from exercising any right, power, or privilege. Rev. & Tax. Code § 23301; see Timberline, Inc. v. Jaisinghani, 54 Cal.App.4th 1361, 1367 (1997). During such suspension, the corporation is incapable of suing or defending in state courts. Cadle Co.

2 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT GREENSPRINGS' REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS

Case 3:07-cv-04776-JL

Document 89

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v. World Wide Hospitality Furniture, Inc., 144 Cal.App.4th 504, 511 (2006); Palm Valley Homeowners Ass'n, Inc. v. Design MTC, 85 Cal.App.4th 553, 560-561 (2000). The corporation's incapacity to sue or defend in state courts may also preclude it from suing or defending in federal courts. Matter of Christian & Porter Aluminum Co., 584 F.2d 326, 331 (9th Cir. 1978). Any person who attempts or purports to exercise the powers, rights, and privileges of a suspended corporation may be criminally punished by a $250 to $1,000 fine and/or up to one year in prison. Rev. & Tax. Code § 19719(a),(b). By stipulation dated June 23, 2008, served and filed herewith, the parties through their counsel have agreed that the Court may take judicial notice of the document listed above as Exhibit A.

Dated: June 23, 2008

Respectfully submitted, LAW OFFICES OF CARLETON L. BRIGGS

/s/ Carleton L. Briggs CARLETON L. BRIGGS Attorneys for Defendant GREENSPRINGS BAPTIST CHRISTIAN FELLOWSHIP TRUST

3 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT GREENSPRINGS' REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS