Opposition Brief — Branson v. City of Los Angeles

[ Suprenre Court, U.S.

| FILEQOQ

NOV 4 1999

|

(a, | OFFICE OF THE €LERK

No. 99-585 ~~ |

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1999

RONALD BRANSON,

Petitioner,

VS.

City OF Los ANGELES, et al.,

Respondents.

RESPONDENTS’

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

PATRICK MCADAM

Counsel of Record

IVERSON, YOAKUM, PAPIANO & HATCH

624 South Grand Avenue

Suite 2700

Los Angeles, California 90017

(213) 624-7444

Attorneys for Respondents

Lockheed Martin IMS and

Edward Avila

Bowne of Los Angeles, Inc., Law Printers (213) 627-2200

Appellant:

Appellees:

Cross-Appellants:

Cross-Appellee:

i

LIST OF PARTIES

Ronald Branson

City of Los Angeles, Los Angeles

Department of Transportation

(LADOT); Thomas Conner, General

Manager LADOT; Lockheed Martin

IMS; Edward Avila, Western Region

Senior Vice President of Lockheed

Martin IMS; California Department of

Motor Vehicles (DMV); Sally Reid,

Director DMV

Lockheed Martin IMS and Edward

Avila

Ronald Branson

ii

LIST OF PARENT COMPANIES AND

NONWHOLLY OWNED SUBSIDIARIES

Lockheed Martin IMS is a New York corporation that is

a wholly owned subsidiary of its parent company, Lockheed

Martin Corporation. Lockheed Martin IMS has no subsidi-

aries. There is no other parent or subsidiary company to be

listed.

iil

TABLE OF CONTENTS

BOP OP PARTIES co. ates c sess eeeecssesssess i

LIST OF PARENT COMPANIES AND

NONWHOLLY OWNED SUBSIDIARIES .... il

TABLE OF CITED AUTHORITIES ....------:: iV

STATEMENT OF CASE ....------ssssrrrcte l

NO COMPELLING REASON FOR COURT TO

EXERCISE DISCRETIONARY REVIEW

Ef L155 a kesns ee esses eee es eres Ss 4

PUNO SIRI oo once ncnscececcrssrasr sess: 8

iV

TABLE OF CITED AUTHORITIES

Federal Cases

Allen v. McCurry, 449 U.S. 90, 66 L.Ed.2d 308,

Pn es RE Cas 5h Cs cee oe 6

Branson v. Nott, 62 F.3d 287 (9th Cir. 1995) ......

Cantrell v. Knoxville Community Development

Corp, GO FOG UT? COGN Ale, TERS) oc cu cccasccs 5

Dist. Col. Court of Appeals v. Feldman,

460 U.S. 462, 75 L.Ed.2d 206, 103 S.Ct. 1303

8) re ere rere were yr eo mC Ene p are rage 6

Roadway Express Inc. v. Piper, 447 U.S. 752,

65 L.Ed.2d 488, 100 S.Ct. 2455 (1980) ......... 7

White v. General Motors Corp., Inc.,

ee Fee oe el reer 7

United States Statutes

Ok oS ere re rrr era rn eae 7

oe f° ee rear re 6

eS 8, Ce ee re re errr ne 4

Federal Rules

Federal Rules of Civil Procedure, Rule 15(a)...... 6

Federal Rules of Civil Procedure, Rule 59(e) ...... 6

Federal Rules of Evidence, Rule 201(b) .......... 5

Federal Rules of Evidence, Rule 201(d) .......... 5

Vv

TABLE OF CITED AUTHORITIES

Page

California Statutes

California Code of Civil Procedure § 906........-- 5

California Vehicle Code § 4760 .....---- sees ee: 2

California Vehicle Code §§ 40200 through 40230...

California Vehicle Code § 40206 .....----+++-s+

State Court Rules

California Rules of Court, Rule 2(a) ...-----++++

Miscellaneous

Moore’s Federal Practice 3d § 15.12[2] (1997) .... 6

Moore’s Federal Practice 3d § 15.12[3] (1997) ...- 6

Moore’s Federal Practice 3d § 15.15[3] (1997) ...- 6

21 Wright & Graham, Federal Practice and

Procedure: Evidence § 5110 (1977) ...----.+++ 5

21 Wright & Graham, Federal Practice and

Procedure: Evidence § 5110 (1999 Supplement) .. 5

No. 99-585

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1999

RONALD BRANSON,

Petitioner,

VS.

City oF Los ANGELES, et al.,

Respondents.

RESPONDENTS’

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Respondents Lockheed Martin IMS and Edward Avila

(“Avila”) respectfully request that Ronald Branson’s

(“Branson”) petition for a writ of certiorari, SEEKING

REVIEW OF THE NINTH CIRCUIT’S opinion in this

case, be denied. The Ninth Circuit’s opinion is unpublished.

STATEMENT OF CASE

On January 12, 1998 this court denied Branson’s petition

for a writ of certiorari regarding the state court lawsuit he

filed over a parking ticket he received in December of 1993.'

Branson’s current petition complains about the federal court

'See Ronald Branson v. City of Los Angeles, et al., Case number

97-6658.

2

proceedings he started three weeks after this Court’s previ-

ous ruling.

As the Court will recall, the City of Los Angeles mailed

Branson a Notice of Delinquent Parking Violation (the

‘“Notice”), which stated, in pertinent part, as follows:

Our records show that you have failed to respond to the

parking ticket(s) listed below. Failure to pay the park-

ing penalties due by mail or in person prior to the DUE

DATE indicated below [01/05/94] will result in in-

creased penalties, withholding of your vehicle registra-

tion by the Department of Motor Vehicles (CVC

[California Vehicle Code Section] 4760), and may

subject your vehicle to immobilization (booting) or

impoundment ... If you wish to contest this violation,

you must request an administrative review PRIOR to

the DUE DATE [01/05/94] printed on this NOTICE.

This may be done by mail, by telephone to the numbers

noted above, or in person at the offices listed on the

back of this notice. (emphasis added)

The Notice: (1) informed Branson of his failure to pay a

parking ticket; (2) warned him that a failure to pay would

result in increased penalties; (3) warned him that a failure

to pay would result in the withholding of the registration of

his vehicle; and (4) informed him of the procedures availa-

ble for contesting the parking ticket. The Notice was sent in

accordance with state law.

Branson did not follow the procedures identified in the

Notice. Instead, he invented his own. On January 4, 1994,

he mailed the City a document styled “Response to ‘Notice

of Delinquent Parking Violation’ Mailed To The Accused

December 22, 1993 (Affidavit of Ronald Branson)”, in

which he admitted receiving the Notice.

3

Four days later, the City responded by letter stating:

If you believe sufficient justification exist [sic] to grant

an exemption from the time limits, you may request a

‘Waiver for Untimely Request for Administrative

Review/Hearing’ by filling out the enclosed form and

mailing it, with a copy of this letter...

Instead of obtaining the “Waiver for Untimely Request”,

Branson mailed the City a document he called “Notice Of

Non-Response to “Response to “Notice of Delinquent Park-

ing Violation” Mailed To The Accused December 22, 1993

(Affidavit of Ronald Branson).’” On January 26, 1994, the

City mailed Branson a letter in reply. Branson did nothing in

response until May 17, 1994, when he filed a “Claim For

Damages” against the City.

On September 12, 1994, the California Department of

Motor Vehicles (“DMV”) mailed Branson a Renewal No-

tice for Vehicle Registration. Although the Renewal Notice

required a payment of $158.00, which included the fine for

the unpaid parking ticket, Branson sent the DMV a check

for only $39.00. The DMV cashed the check and sent

Branson a notice requesting payment of the $119.00 bal-

ance. Pursuant to its statutory power, the DMV also with-

held the vehicle registration.

Branson then filed his state court lawsuit, which prayed

for (1) general damages in the amount of $350,000.00;

(2) an order expunging the parking ticket; and (3) an order

requiring the DMV to renew his vehicle registration.

The state trial court sustained the City’s and Lockheed

IMS’s demurrer to the complaint and entered an Order of

Dismissal.

Under California law, if a notice of appeal is not filed

within 180 days of the entry of the order of dismissal, the

state appellate court lacks jurisdiction to consider the ap-

peal. Since Branson did not timely file his notice of appeal,

4

the state court of appeal had no jurisdiction to consider; and,

therefore, properly dismissed, the appeal.

He thereafter filed a petition for review with the Califor-

nia Supreme Court, which was denied on February 5, 1997.

His second petition for review was also denied and, as

mentioned above, his petition to this Court for a writ of

certiorari was denied on January 12, 1998.

Three weeks later, Branson filed the current lawsuit,

which named Lockheed Martin IMS and Avila as defend-

ants. They moved to dismiss; their motion was granted; and

judgment was entered against Branson. He then filed a post-

judgment motion to alter or amend the judgment and filed a

first amended complaint. Lockheed Martin IMS and Avila

opposed the motion; filed a Bill of Costs; and filed a motion

for 42 USC § 1988 (‘§ 1988”) attorney’s fees.

After ruling on the post-judgment motions, the district

court awarded costs. Branson filed a notice of appeal.

Lockheed Martin IMS and Avila cross-appealed because

the district court denied their request for § 1988 attorney’s

fees.

The court of appeals aifirmed the district court’s judg-

ment. After his request for a rehearing was denied, Branson

filed his current petition with this Court.

NO COMPELLING REASON FOR COURT TO

EXERCISE DISCRETIONARY REVIEW POWERS

Branson’s petition makes no showing that the decision of

the court of appeals (1) conflicts with a decision of another

United States court of appeals on an important matter;

(2) has so far departed from the accepted and usual course of

judicial proceedings; or (3) sanctioned such a departure by a

lower court. Moreover, the petition makes no showing that a

state court of last resort has decided an important federal

5

question in a way that conflicts with a decision of this Court,

another state court, or of a United States court of appeals.

We anticipate that Branson may argue in his reply as

follows: (1) the petition raises the question of whether

Rule 201(d) of the Federal Rules of Evidence (“FRE”)

requires mandatory judicial notice on appeal; (2) it has been

said that “earlier codifiers were all over the road” on the

question (see 21 Wright & Graham, Federal Practice and

Procedure: Evidence section 5110, page 525 (1977) );

(3) this Court has not addressed the question; and (4) “[i]tis

possible to read the Rule as answering the question affirma-

tively.” See Wright & Graham, supra. Although respected

authority has said that the better interpretation of

Rule 201(d) limits mandatory judicial notice to the trial

courts. [21 Wright & Graham, supra., § 51 10 at pp. 525-527;

21 Wright & Graham Federal Practice & Procedure: Evidence

§ 5110, p. 268 (1999 Supplement) ], in truth, our research

suggests that this Court has not addressed the question.

It is settled, however, that a court can take judicial notice

of a fact if the fact is “capable of accurate and ready

determination by resort to sources whose accuracy cannot

reasonably be questioned.” FRE Rule 201 (b). Indeed, it is

generally recognized that where the source of the informa-

tion is questionable, judicial notice cannot be taken. See,

e.g., Cantrell v. Knoxville Community Development. Corp.,

60 F.3d 1177, 1180 (6th Cir. 1995). Here, the source of the

‘nformation was Branson’s personal views, which are, to the

say the least, questionable; for example, that an order was

“interlocutory” not “final” [see Petition A-50, para. nos.

(3) and (4)]; that “(n)o appeal on the subject matter of

the notice of appeal (Exhibit C) under (California) Code of

Civil Procedure section 906 (Exhibit D) was ever afforded

(Branson) in state court...” [see Petition, A-52, para.

no. (15) ]; that “‘(n)o adjudication of (Branson’s) constitu-

tional challenge ... was made by state court.. ”’ [see Peti-

6

tion, A-53, para. no. (16) ]; and “(m)o access to state court

for redress of (Branson's) grievances ... was given by state

court...” Petition, A-53, para. no. (17).

In sum, mandatory judicial notice was not required in the

court of appeals in this case. Moreover, the court of appeals

did not abuse its discretion in denying Branson’s request for

judicial notice.

As to the four other questions Branson presents in his

petition, none provides a compelling reason for granting a

writ of certiorari. First, as an overarching criticism of the

remaining questions, we refer to what this Court plainly

stated in Allen v. McCurry’:

But the Court’s view of Section 1983... lends no

strength to any argument that Congress intended to

allow relitigation of federal issues decided after a full

and fair hearing in a state court simply because the

state court’s decision may have been erroneous.’

Second, although he complains that he had a right to

amend, Branson’s ability to do so became subject to proce-

dural limitations once the district court entered a final

judgment. Indeed, it is well settled that a plaintiff no longer

has the nght to amend under Rule 15(a) of the Federal

Rules of Civil Procedure and must first obtain relief under

Rule 59(e).* Moreover, it is settled that the futility of

amendment can, by itself, justify the denial of a motion

under Rule 59(e).°

*449 U.S. 90, 66 L.Ed.2d 308, 101 S.Ct. 441 (1980). See, also, Dist.

Col. Court of Appeals v. Feldman, 460 U.S. 462, 482, 75 L.Ed.2d. 206,

222, 103 S.Ct. 1303, 1314 (1983).

*Id., 449 U.S. at 101.

“Moore's Federal Practice 3d., § 1S.12[2] (1997).

‘Moore's Federal Practice 3d., § 1S.12[3] and § 15.15[3]} (1997).

7

Third, since the district court entered a final judgment in

favor of Lockheed Martin IMS and Avila, costs were

properly allowed to them.°

Fourth, it is settled that the district court had discretion

and inherent power to sua sponte discipline Branson for

willful abuse of the judicial process.” Moreover, there is no

dispute that the district court’s order gave Branson notice of

the rule on which the sanctions were based, and the form of

the sanctions.® Indeed, the monetary sanctions were not due

for over forty days, which provided Branson with an ade-

quate opportunity to fully brief the issue by asking the court

to reconsider. It is also settled that an opportunity to be

heard with regard to sanctions does not require an oral or

evidentiary hearing on the issue.” In short, Branson received

all the process he was due.

See, e.g., 28 USC § 1919.

’ Roadway Express Inc. v. Piper, 447 U.S. 752, 166, 65 L.Ed.2d 488,

$01, 100 S.Ct. 2455 (1980).

81d., 447 U.S. at 767.

*See, e.g., White v. General Motors Corp., Inc., 908 F.2d 675, 686

(10th Cir. 1990) cert. denied 498 USS. 1069, 112 L.Ed.2d 850, 111 S.Ct.

788 (1991).

8

CONCLUSION

For these reasons, and each of them, Branson’s petition

for a writ of certiorari should be denied.

Dated: October 27, 1999

Respectfully submitted,

By PATRICK MCADAM

Counsel of Record

IVERSON, YOAKUM, PAPIANO & HATCH

624 South Grand, 27th Floor

Los Angeles, California 90017

Counsel for Respondents

Lockheed Martin IMS and

Edward Avila