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Defendant.
1 ALGERIA R. FORD, CA Bar No. 289016
2 Deputy County Counsel
J EAN-RENE BASLE, CA Bar No. 134107
3 County Counsel
4 385 North Arrowhead Avenue, Fourth Floor
5 San Bernardino, CA 92415-0140
Telephone: (909) 387-5455
6 Facsimile: (909) 387-4069
7 Electronic Mail Address: Algeria.Ford@cc.sbcounty.gov
8 Attorneys for Defendant, SAN BERNARDINO SHERIFF'S DEPARTMENT
UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
12 J ONATHAN BIRDT, ) CASE NO. EDCV 13-00673-VAP (J EM)
)
) OPPOSITION TO PLAINTIFF'S EX
) PARTE APPLICATION FOR
) TEMPORARY RESTRAINING ORDER
) AND TO SET HEARING ON A
SAN BERNARDINO SHERIFFS ) PRELIMINARY INJ UNCTION;
17 DEPARTMENT, ) DECLARATION OF S. HENDRIX
)
) Assigned to District J udge
) Virginia A. Phillips
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Defendant hereby opposes Plaintiff's Ex parte Application because
21 the Plaintiff has failed to proffer any evidence showing that he will be
22 irreparably prejudiced, that he cannot comply with the normal Motion
23 .Schedule, or that he can succeed on the merits.
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Plaintiff,
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vs.
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I.
INTRODUCTION
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Plaintiff alleges he is a resident of San Bernardino County and that
26 on February 26, 2013, the San Bernardino County Sheriff's Department
27 denied him a concealed weapons permit. He further alleges that this
28 denial violated his Second Amendment right to carry a concealed
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OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION
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OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION
weapon.
On October 22, 2013, Plaintiff filed a First Amended Complaint
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(FAC), alleging Constitutional violations, and sought an Order requiring
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the County of San Bernardino to issue him a concealed carry permit. He
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also sought fees and costs. On November 08, 2013, the San Bernardino
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County Sheriff's Department filed a Motion to Dismiss the FAC. Plaintiff
filed a Reply on December OS, 2013. A ruling on the Motion to Dismiss is
pending in this Court.
On February 24, 2014, Plaintiff then filed an ex-parte Application
with this Court seeking a restraining order and a hearing on a preliminary
injunction. The Application fails to establish why such an Application is
necessary. how Plaintiff contends he would succeed on the merits, or how
he will be irreparably prejudiced.
II. ARGUMENT
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A. Ex Parte Relief is Only J ustified in Limited, Emergency
Circumstances
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Ex parte applications are solely for extraordinary relief and are
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rarely justified. Mission Power Engineering Co. v. Continental Casualty
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Co., 883 F. Supp. 488 (C.D. Cal. 1995). They are inherently unfair, pose a
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threat to the administration of justice, debilitate the adversary system and
the goal often appears to be to surprise opposing counselor at least to
force him or her to drop all other work to respond on short notice. ~ at
490. Further, "when unsupportable allegations are made in regular
noticed motions, they can, to a great extent, be neutralized by a
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well-prepared rebuttal. In papers prepared on short notice, however, the
lawyers too often simply make allegations that have no supporting
evidence to back them up. Even more pernicious is another tendency: the
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advocates draw conclusions that appear to be supported by voluminous
exhibits, but are not borne out when the evidence is reviewed with more
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deliberation and more careful rebuttal than is possible in hasty hearings
on ex parte motions." ~ at 491.
In the ex parte motion filed by Plaintiff J ONATHAN BIRDT, all the
above concerns abound. Defendant has only 24 hours to respond, and
Defendant is time-limited from filing a well-prepared response to the
numerous allegations in Plaintiff's Ex Parte Motion. Further, the request
appears to merely be an attempt to force the San Bernardino County
Sheriffs Department to stop working on all other work.
B. Plaintiff Has Not Established That A Legitimate, Emergency
Circumstance Exists
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As this Court has stated, "the opportunities for legitimate ex parte
applications are extremely limited." In re IntermagneticsAmerica, Inc.,
101 B.R. 191 (C.D.Cal. 1989). A legitimate circumstance may arise
where there is some genuine urgency such that "immediate and
irreparable injury, loss, or damage will result to the applicant before the
adverse party or his attorney can be heard in opposition." ~ at 192. Ex
parte proceedings are also appropriate where there is a danger that
notice to an opposing party will result in that party's flight or destruction of
evidence. 19. : . at 193. A final situation may arise when a party seeks a
routine order. Id. at 192. Plaintiff's motion does not establish that he falls
under any of these circumstances.
1. Plaintiff has not shown that he will be irreparably prejudiced
To justify ex parte relief, the evidence must show that the Plaintiff's
cause will be irreparably prejudiced if the motion is heard according to
regular noticed motion procedures. Mission Power Engineering Co. v.
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OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION
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Continental Casualty Co., 883 F. Supp. 488 (C.D. Cal. 1995). To show
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irreparable prejudice, the Plaintiff must show that there are close issues
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that justify the court's review before the party suffers the severe harm. ~
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at 492. If the harm would not be severe, then it must be apparent that the
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underlying motion has a high likelihood of success on the merits. ~ at
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492.
Plaintiff is not irreparably prejudiced because he has not provided
any facts or explained why the Court must act immediately to prevent a
severe harm. The original Complaint on this issue was filed back in April
of 2013 and his Amended Complaint, in November of 2013. Plaintiff's
delay in filing this application indicates that there is no urgency to the
requested relief. See Berjikian v. Franchise Tax Bd., No. CV 13-06301
DDP J CGX, 2013 WL 4677772, at *1 (C.D. CaL Aug. 30, 2013); Rosal v.
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First Fed. Bank of California, NO. C 09-1276 PJ H, 2009 WL 837570, at *1
(N.D. Cal. Mar. 26, 2009) C[T]he court finds that plaintiff's delay in
requesting a TRO militates against its issuance.") Plaintiff has also not
explained why his Motion could not have been made during the normal
schedule.
Furthermore, the Plaintiff has not explained or provided any facts
that establish how any alleged harm he might suffer is severe. While he
asserts in a conclusory fashion that he is "suffering a current irreparable
harm" not only has he failed to state what his severe harm is, he has
failed to explain how it is irreparable. There are also no supporting
declarations attesting to the necessity for an ex parte Motion.
Finally, the Plaintiff has not shown that he has a high likelihood of
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success on the merits. In support of his application, Plaintiff cites to the 9
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Circuit's recent opinion in Peruta, McDonald v. City of Chicago, U.S. v.
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OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION
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OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION
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Chovan, and Winter v. Nat'! Res. Oef. Council, Inc. Notably, none of those
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case holds that a local government is precluded from denying an
applicant a permit to carry a concealed weapon. Further, assuming it is
the Peruta decision that is driving this application, the Plaintiff has not
articulated how the facts and circumstances ruled on in that decision
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make success in this case highly likely. In fact, Peruta dealt with the facial
deficiency of an agency's policies and procedures regarding issuing
permits. Specifically, it addressed the narrow question of the
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. constitutionality of San Diego County's policy of requiring persons to show
good cause to carry concealed firearms in public. Plaintiff BIROT has
failed to establish that is the issue in this case and thus, the holding in
Peruta would be irrelevant to establishing success. In this case, Plaintiff
BIRDT's application was denied on Moral Standing grounds, not "good
cause" grounds. (See Decl. Sarah Hendricks, Para. 2.)
2. Plaintiff has not shown that witnesses will be unavailable or
evidence will be destroyed
Plaintiff has also not shown that evidence will be destroyed or
unavailable to him unless this request is granted. In fact, the Plaintiff
argues no facts to establish why such drastic relief is required.
3. Plaintiff's Request is Not a Routine Request
Plaintiff's request is also far from routine, it is a request for the Court
to rule on the merits of the case pending before it, via an Ex Parte
Application. To that end, it is improper because it seeks to compel an
action that forms the basis of the litigation.
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OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION
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III. CONCLUSION
In sum, the Plaintiff has failed to establish that he will be irreparably
prejudiced or that he meets the requirements for the granting of the
application. Therefore, this Court should deny it.
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DATED: February 25,2014
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J EAN-RENE BASLE
County Counsel
1/)1 //)
l/ "'/ ///
, /f 1/
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R. FORD
Deputy ounty Counsel
Attorneys for Defendant
Case 5:13-cv-00673-VAP-JEM Document 33 Filed 02/25/14 Page 6 of 9 Page ID #:273
DECLARATION OF SARAH HENDRIX
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~~4ff-2?
Sarah Hendrix, Declarant
2 I, Sarah Hendrix, declare as follows:
3 1. I am employed by the San Bernardino County Sheriff's
4 Department and have been so for the last 23 years. I currently hold the
5 position of Deputy Sheriff. Part of my duties in this capacity include being
6 familiar with the files of applicants who seek permits to carry concealed
7 weapons. The following is based on my personal knowledge.
8 2. I reviewed Mr. Birdt's file and it states that Mr. Birdt's
9 application for a Concealed Carry Permit was denied for Moral Character
10 reasons.
11 I declare under penalty of perjury that the foregoing is true and
12 correct. Executed this 25
th
day of February, 2014 in San Bernardino,
13 California, United States of America.
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DECLARATION OF SARAH HENDRIX
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PROOF OF SERVICE
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J onathan W. Birdt, Esq.
LAW OFFICE OF J ONATHAN W BIRDT
10315 Woodley Avenue, Suite 208
Granada Hills, CA 91344-6950
Telephone: (818) 400-4485
Facsimile: (818) 428-1384
Electronic Mail Address: ion@ionbirdt.com
Plaintiff In Propria
Persona
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3 I am employed in the County of San Bernardino, State of California. I
am a citizen of the United States, employed in the County of San
4 Bernardino, State of California, over the age of 18 years and not a party to
5 nor interested in the within action. My business address is 385 North
Arrowhead Avenue, Fourth Floor, San Bernardino, CA 92415-0140.
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7 On Tuesday, February 25, 2014, I served the following document(s)
8 .(specify):
9 OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR
10 TEMPORARY RESTRAINING ORDER AND TO SET HEARING ON A
PRELIMINARY INJ UNCTION; DECLARATION OF S. HENDRIX
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12 I served the document(s) on the person(s) below, as follows:
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19 The document(s) was (were) served by the following means:
20 c g J By Facsimile Transmission. Based on an agreement of the parties to
21 accept service by facsimile transmission, I sent the documents via
22 facsimile to the persons at the facsimile numbers listed above. No error
was reported by the facsimile machine that I used. A copy of the record of
23 the facsimile transmission, which I printed out, is attached.
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I declare under penalty of perjury under the laws
25 States of America, that th ve is true and correct.
26
J acqueline Love ~~:::::-~~~+~~~~:::s.:...=,-~~
27 (TYPE OR PRINT NAME OF CLARANT) (SIGNA
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OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION
Case 5:13-cv-00673-VAP-JEM Document 33 Filed 02/25/14 Page 8 of 9 Page ID #:275
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PRINCIPAl ASSISTANTS
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MichaEi!1A. J ...1.arhef
Penny~?~et~K elley
aartw . Brizzee
385 NORTH ARROWHEAD AVENUE, 4TH FLOOR
SAN BERNAROINO, CA 9<!415-014Q
TEI.EPHONE (909) 387-5455
FAX (909) 387-4Oe9
FACSIMILE TRANSMITTAL SHEET
TO: FR{)M:
Algeria R. Ford
Oeputy County Counsel
J onathan W. Birdt
COMPANY:
LAWOFFICE OF
J ONATHAN W, BIRDT
DAre:
Tuesday, February 25, 2014
RECIPIENT'S FAX NUMBER:
(818) 4004485
SENDER'S FAX NUMBER:
(909) 387-4069
RECIPIENT'S PHONE NUMBER:
(818}428-1384
St'NI)ER'S TI;LEPIiON~ NUMBER
(909) 387-5455
RE:
Jonathan Birdt v, San Bernardino
Sheriffs Department
Case Number: EDCV 1J ..00673-VAP
(J EM)
TOTAL NO, OF PAGES INCLUDING COVER:
Nine (9) - Opposition to Plaintiff's
Ex Parte Application for Temporary
Restraining Order and to Set
Hearing on a Preliminary Injunction;
Declaration of S, Hend rix
o URGENT X FOR REVIEW 0 PLEASE REPLY
COMMENTS'
Thank you, Attorney Birdt.
CONFIDENTIALITY NOTICE; This communication contains legally privileged and
confidential information sent solely for the use of the intended recipient. If you are not
the intended recipient of this communication you are not authorized to use it in any
manner, except to immediately destroy it and notify the sender.
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