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

Case 3:07-cv-04776-JL

Document 60

Filed 04/17/2008

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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' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED [FRCP 12(B)(6)] _________________________________ Date: June 4, 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 matters herein discussed. A matter that is properly the subject of judicial notice may be considered along with the complaint when deciding a motion to dismiss for

1 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT GREENSPRINGS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Case 3:07-cv-04776-JL

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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: 1. The Complaint, First Amended Complaint, Second Amended Complaint, and Third Amended Complaint filed in the Anderson v. Dillon litigation, copies of which are attached as Exhibits A, B, C and D, respectively.

2. The fact that the Anderson v. Dillon litigation was settled and dismissed with prejudice. A copy of the dismissal is attached as Exhibit E. Courts commonly take judicial notice of the contents of case files in another court. See, e.g., Taylor v. Charter Med. Corp., 162 F.3d 827, 828 (5th Cir. 1998).

3. The fact that a grant deed was executed on January 12, 1999, by Elsie G. Turchen, as Trustee of the Penny Trust, transferring the property located at 325 Malcomb Avenue, Belmont, California to Greensprings Fellowship Trust, a § 501(c)(3) organization. The document was notarized on September 19, 1999, and the deed subsequently was recorded in 2005 in the office of the San Mateo County Recorder. Attached hereto as Exhibit F are true and correct recorded copies of that deed and of the deeds of other properties transferred by Elsie G. Turchen to Greensprings. 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 may properly be taken of grant deeds transferring property, which are official records of easily verifiable accuracy. See Hotel Employees and Rest.,

2 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT GREENSPRINGS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

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Local 2 v. Vista Inn, 393 F. Supp.2d 972, 978 (N.D. Cal. 2005). Federal Rule of Evidence 201(d) makes judicial notice mandatory when so requested by a party and supplied with the necessary information. Haye v. United States, 461 F.Supp. 1168, 1174 (C.D. Cal. 1978). The first amended complaint alleges that the promise to pay $500,000 to a charity of plaintiffs' choice was a substitute for the alleged gift Elsie Turchen offered to Molly and Anne Miller by letter dated November 23, 2000, of the property located at 325 Malcomb Avenue, Belmont, California. But the deed attached as part of Exhibit F demonstrates that Elsie Turchen already had deeded that property to Greensprings almost a year before she ever made the alleged offer to plaintiffs.

4. The fact that the notices of lis pendens filed on real properties in conjunction with the Anderson v. Dillon litigation by the Estate of Ward D. Anderson III and the Estate of Elsie G. Turchen (including the Malcomb Avenue property that Elsie Turchen considered giving to Anne and Molly Miller) have been withdrawn. Copies of the recorded withdrawals of lis pendens from the properties are attached hereto as Exhibit G. As discussed above, notices of lis pendens and their withdrawals were filed in the office of the San Mateo County Recorder and are official records of easily verifiable accuracy that are subject to judicial notice. Plaintiffs have referred at length in their first amended complaint to matters that were once at issue in the Anderson v. Dillon litigation. But that litigation has been settled; the claims by both estates against all defendants were dismissed with prejudice; and notices of lis pendens filed in conjunction with that litigation were withdrawn. Accordingly, the claims at issue in that case have been resolved and must be given res judicata effect in this action.

3 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT GREENSPRINGS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Case 3:07-cv-04776-JL

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5. The fact that Greensprings is a tax exempt organization. Attached hereto as Exhibit H is a true and correct copy of a Letter 947 from the Internal Revenue Service to Greensprings, dated September 20, 1994, stating in part: "we have determined you are exempt from federal income tax under section 501(a) of the Internal Revenue Code as an organization described in section 501(c)(3)." Moreover, the IRS lists Greensprings as a tax exempt organization in Publication 78, Cumulative List of Organizations described in Section 170(c) of the Internal Revenue Code of 1986 (organizations eligible to receive charitable contributions), which is easily accessed on the IRS's website. 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). Paragraph 9 of the first amended complaint in the instant action alleges on information and belief that Greensprings is a § 501(c)(3) organization but states that it is not registered with the California Attorney General's Registry of Charitable Trusts, apparently implying something sinister in this lack of registration. The Attorney General maintains the Registry under the Supervision of Trustees and Fundraisers for Charitable Purposes Act, California Government Code § 12580 et seq. See § 12584. Greensprings does not appear in the Registry because the Act does not apply "to any religious corporation sole or other religious corporation or organization that holds property for religious purposes, or to any officer, director, or trustee thereof who holds property for

4 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT GREENSPRINGS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

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like purposes." Id., § 12583. By stipulation dated April 17, 2008, served and filed herewith, the parties through their counsel have agreed that the Court may take judicial notice of the documents listed above in Exhibits A, B, C, D, E, F, G and H.

Defendant Greensprings also requests that the Court take judicial notice of the following: 6. A letter, produced in initial disclosures by plaintiffs, dated November 14, 2004 from plaintiffs "Bob & Barbara Miller On [sic] Behalf of Molly Miller" to Christine Dillon and Don Bohn, directing them "to issue a check in the amount of $500,000 payable to Maui Preparatory Academy c/o Molly Miller." A copy is attached as Exhibit I. Paragraph 40 of plaintiffs' first amended complaint states that "Mr. and Mrs. Miller wrote to Bohn and Dillon still believing that they had the authority to issue checks for this purpose. Thereafter, on January 10, 2005, a cashier's check was delivered by Defendant Greensprings to Mr. and Mrs. Miller in the amount of $500,000 made out to Maui Preparatory academy, exactly as directed by the Millers." This reference to the fact that plaintiffs wrote to Bohn and Dillon and "directed" them as to the issuance of a check for $500,000 is a reference to the November 14, 2004 letter. Since it was written by and to persons who are parties to this action, its authenticity is easily verifiable. A matter that is properly the subject of judicial 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).

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5 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT GREENSPRINGS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

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7. Letter of March 20, 2007 from Seabury Hall to Robert and Barbara Miller, produced by plaintiffs as supplemental initial disclosure. A copy is attached as Exhibit J. Plaintiffs Barbara and Robert Miller have added allegations that they have sustained damages of $200,000, because, in reliance upon their expectation of receiving $500,000 from Greensprings, Barbara and Robert Miller pledged a gift of $200,000 to Seabury Hall, and that Seabury Hall is now pursuing collection of the Millers' pledge from them personally. FAC, ¶ 45. They further allege that "on March 20, 2007, Seabury Hall began pursuit of the payment of the pledge by Barbara Miller and Robert Miller." FAC ¶ 57. These are references to the letter from Seabury Hall, which seems to indicate that the pledge in fact was made not by Barbara and Robert Miller but by the Miller Family Foundation.

8. Last Will and Testament of Elsie Turchen. Plaintiffs allege on information and belief that Elsie Turchen "left no last will and testament." FAC ¶ 18. However, plaintiffs were provided by defendant Greensprings with a copy of the Last Will and Testament of Elsie G. Turchen in initial disclosures. A copy is attached hereto as Exhibit K.

Dated: April 17, 2008

Respectfully submitted, LAW OFFICES OF CARLETON L. BRIGGS

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

6 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT GREENSPRINGS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED