S155944

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA

THOMAS LEE GOLDSTEIN,

Petitioner,

V.

SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent.

SUPREMECOURTFILED

NOVt 4 2007

Freclericl_ K, Ohrlch _lOrk

Grand Jury of the County of Los Angeles, County of Los Angeles,John-Van de Kamp, and Curt Livesay,

Real Parties in Interest.

After a Decision by the Court of AppealSecond Appellate District, Division Three

Case No. B199147

BRIEF ON THE MERITS

...... John J. Collins, Esq.• Tomas A. Guterres, Esq.

Douglas Fee, Esq. (State Bar No. 116995)COLLINS, COLLINS, MUIR & STEWART, LLP

1100 E1 Centro Street

South Pasadena, CA 91030

(626) 243-1100; FAX (626) 243-1111Attorneys for Petitioners for Review and Real Parties in Interest

COUNTY OF LOS ANGELES, JOHN VAN DE KAMP,and CURT LIVESAY

@®@[PV

O

$155944

O IN THE SUPREME COURTOF THE STATE OF CALIFORNIA

0

THOMAS LEE GOLDSTEIN,

Petitioner,

v.

SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent.

Grand Jury of the County of Los Angeles, County of Los Angeles,John Van de Kamp, and Curt Livesay,

Real Parties in Interest.

After a Decision by the Court of AppealSecond Appellate District, Division Three

Case No. B199147

BRIEF ON THE MERITS

John J. Collins, Esq.Tomas A. Guterres, Esq.

Douglas Fee, Esq. (State Bar No. 116995)COLLINS, COLLINS, MUIR & STEWART, LLP

1100 E1 Centro Street

South Pasadena, CA 91030

(626) 243-1100; FAX (626) 243-1111Attorneys for Petitioners for Review and Real Parties in Interest

COUNTY OF LOS ANGELES, JOHN VAN DE KAMP,and CURT LIVESAY

TABLE OF CONTENTS

BRIEF ON THE MERITS

I° CALIFORNIA DOES NOT RECOGNIZE A COURT'SINHERENT POWER TO IMPOSE AN "INTERESTSOF JUSTICE" EXCEPTION TO STATUTORY CONTROLOVER THE RULE OF GRAND JURY NONDISCLOSURE ....... 2

A° Rule in California: Nondisclosure of Grand JuryMaterials ............................................................. 2

• - .B. Justifications for the Califomia Rule of Nondisclosure ....... 4

-1. The Main Purpose of California's Grand Juriesis to Act as a Watchdog on GovernmentalOperations ................................................... 4

° Under the California Constitution, Only the

Legislature is Empowered to RegulateDisclosure of Grand Jury Materials, Thus ThereIs No Inherent Judicial Power to Order

Disclosure .................................................... 5

o There is No Inherent Judicial Authority toCreate Exceptions to the Rule of Nondisclosure ....... 8

II. THE RULE OF NONDISCLOSURE IS NOT AFFECTEDBY A DIFFERING CONCEPT APPLICABLE TOFEDERAL GRAND JURIES ............................................ 10

Ao The Federal Grand Jury Serves a Different FunctionThan the California Grand Jury ................................. 10

Bo The Federal Justice System Has a Different Mode ofRegulating Grand Jury Disclosure .............................. 12

Co California is Not Bound by Federal Authority onWatchdog Grand Jury Disclosure ............................... 14

III. CONCLUSION ............................................................ 15

TABLE OF AUTHORITIES

Cases

Allen v. Payne(1934) 1 Cal.2d 607 ......................................................... 8

Daily Journal Corp. v. Superior Court(1999) 20 Cal.4 th 117 ........................... 2, 3, 6, 7, 8, 9, 10, 13, 14

Douglas Oil Co. v. Petrol Stops Northwest441 U.S. 211 ............................................................ 13, 15

Ex Parte Sontag(1884) 64 Cal. 525 .... _._............................................... 3, 13

Fitts v. Superior Court(1936) 6 Cal.2d 230 .................... . .......................... 5, 6, 7, 13

McClatch¥ Newspapers v. Superior Court(1988) 44 Cal.3d 1162 .................. :._. ................... 2, 3, 4, 5, 13

Monroe v. Garrett

(1971) 17 Cal.App.3d 280 ................................................. 11

People v.'Superior Court (1973 Grand Jury for Santa Barbara Count)(1975) 13 Cal.3d 430 .................................................. 10, 12

People v. Superior Court (Mouchaourab)(2000) 78 Cal.App.4 th 403 ................................................. 15

Constitutional Provisions

Cal. Const., § 18, art. 4 ............................................................. 5

±±

Rules

Cal. Rules of Court, Rule 8.200(a)(5) ............................................ 2

F.R. Crim. P. 6(e)(3)(E)-(G) ................................................. 12, 13

Treatises

4 Witkin, Cal. Crim. Law,Criminal Procedure 39, p. 57 (3d Ed. 2000) ............................. 4

9 Witkin, Cal. Proc.,Appeal § 941, p. 982 (4_ Ed. 1997) ....... _............................ 14

iii

IN THE SUPREME COURTOF THE STATE OF CALIFORNIA

THOMAS LEE GOLDSTEIN,

dl

Petitioner,

V,

SUPERIOR COURT OF LOS ANGELES

COUNTY,

Respondent.

GRAND JURY OF THE COUNTY OF LOS

ANGELES, COUNTY OF LOS ANGELES,JOHN VAN DE KAMP, CURT LIVESAY,

Real Parties In Interest.

S 155944

BRIEF ON THE MERITS

After a Decision by theCourt of AppealSecond Appellate District,Division ThreeB199147

BRIEF ON THE MERITS

TO THE HONORABLE CHIEF JUSTICE OF CALIFORNIA AND

THE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME

COURT:

Come now Petitioners for Review and Real Parties in Interest

County of Los Angeles, John Van de Kamp, and Curt Livesay, and

respectfully presenttheir brief on the merits which adoptsand incorporates

by referencetheir petition for review and the brief on the merits filed by

Grand Jury of the County of Los Angeles, pursuant to California Rules of

Court,'Rute 8.200(a)(5).

io

CALIFORNIA DOES NOT RECOGNIZE A COURT'S INHERENT

POWER TO IMPOSE AN "INTERESTS OF JUSTICE"

EXCEPTION TO STATUTORY CONTROL OVER THE RULE OF

GRAND JURY NONDISCLOSURE

Rule in California: Nondisclosure of Grand Jury Materials

As this Court stated in McClatch¥ Newspapers v. Superior Court

(1988) 44 Cal.3d 1162, 1180, "grand jury secrecy is the rule and openness

the exception, permitted only when specifically authorized by statute." In

line with this observation, the Court further noted that, "[r]ecognizing the

important purposes served by grand jury secrecy, the Legislature has

enumerated only three situations in which disclosure of raw evidenfiary

materials is permitted;" id. at 1178.

The Court most recently addressed the rule barring disclosure of

grand jury materials in Daily Journal Corp. v. Superior Court (1999) 20

Cal.4 th 117 by stating that, in California, the whole matter of disclosing

grand jury materials is regulated by statute; id. at 1124.

The only exception to the rule barring disclosure of grand jury

2

materials applies when disclosure is specifically authorized by statute; see

McClatch¥, supra, 44 Cal.3d at 1171, 1173, and Daily Journal, supra, 20

Cal.4 th at 1124-1125.

The single hint of a different rule suggesting that nonstatutory

judicial discretion may be' invoked to permit disclosure appeared ifi the

venerable case of Ex Parte Sontag (1884) 64 Cal. 525, citing in dicta an

authority of the day which stated that certain undescribed disclosures might

be allowed when necessary for the purposes of public justice or for the

protection of private rights; id. at 526. That reference in Sontag (which was

collateral to the decision's holding on a motion to set aside an indictment)

was unnecessary to determination of the case, and was followed up by the

Court's affirmance that "[i]n this state the whole matter [of grand jury

secrecy] is regulated by statute;" id. at 527.

.It

principle

appears that no valid California authority has embraced the

that courts have inherent authority to make exceptions not

mandated by statute and allow access to grand jury materials in disregard of

the nondisclosure rule. To the contrary, the Court has recognized inherent

judicial authority only for the purpose of accomplishing the exact opposite:

viz., to prevent disclosure which was not specifically authorized by statute

(see McClatch¥, supra, 44 Cal.3d at 1184). This holding in McClatch¥

would appear to override the dated Sontag dicta, at least by implication.

Accordingly, as a foundational premise, the settled rule in California

is that secretgrand jury materials may not be disclosed absent a specific

statutory authorization for suchdisclosure.

B. Justifications for the California Rule of Nondiselosure

1. The Main Purpose of California's Grand Juries is to Act

as a Watchdog on Governmental.Operations.

In McClatch¥, the Court held that "disclosure would be

fundamentally inconsistent with governing legislation setting out the

parameters of proper grand jury reporting and providing for the secrecy of

grand jury proceedings which is central to the effective functioning of the

grand jury system in California;" McClateh¥, supra, 44 Cal.3d at 1167.

This holding was largely premised on the fact that one of the three

recognized basic functions of '°dae California grand jury" is "to act as the

public's 'watchdog' by investigating and reporting upon the affairs of local

government;" id. at 1170. "IT]he watchdog role is by far the one most

often played by the modern grand jury in California;" ibid. (citations

omitted). This observation appears well founded (see, e.g., 4 Witldn, Cal..

Crim. Law, Criminal Procedure § 39, p. 57 (3d Ed. 2000): "The principal

function of today's grand jury is to scrutinize the conduct of the public

business of the county. [citation]").

For reasons more fully explained below, it is evident that "It]he

secrecy of grand jury proceedings, carefully nurtured and protected during

that institution's long history, continues to serve important interests at the

present time and in the particular context of watchdog investigations;"

McClatch¥, supra, 44 Cal.3d at 1184.

2. Under the California Constitution, Only the Legislature is

Empowered to Regulate Disclosure of Grand Jury

Materials, Thus There Is No Inherent Judicial Power to

Order Disclosure.

Among the numerous legal jurisdictions throughout the United

States and at the federal level, California has its own approach to allocating

the decision-making power over disclosure of secret grand jury materials.

In Fitts v. Superior Court (1936) 6 Cal.2d 230, this issue was addressed in

connection with motions to quash a grand jury's accusation praying for the

removal of the Los Angeles County District Attorney; id. at .232. The

question presented was the validity of the accusation when returned by only

eleven grand jurors; ibid. The question was answered in the context of the

parties' differing contentions as to whether the California Constitution, in

using the term "grand jury," meant the grand jury as it existed at common

law, or alternatively whether it referred to a completely statutory body not

known to the common law; id. at 233.

Examining Cal. Const., § 18, art. 4 and its terms for impeachment or

liability of public officers, the

constitutional provision must be so

Legislature the power to determineo

Court stated, "the latter part of this

construed as to confer upon the

all matters, including preliminary

procedural steps, essential to accomplish the objective;" Fitts, supra, 6

Cal.2d at 234. The Court explained its analytic approach by noting that

"the State Constitution, as distinguished from the Federal Constitution,

does not constitute a. grant of power, or an enabling act, to the Legislature,

but rather constitutes a limitation upon the powers of that body. it follows,

therefore, that we do not look to the Constitution to determine whether the

Legislature is authorized to do an act, but only to see if it is prohibited. In

other words, unless restrained by constitutional provision, the Legislature is

invested with the whole of the legislative power of the state. [citations];"

ibid.

The Fitts decision went on to explain the constitutional basis for

determinatioil of issues pertaining to a grand jury. Noting that the common

law (of which the grand jury system is a product) was adopted at the

California Legislature's first meeting subsequent to adoption-of the

Constitution of 1849, the Court reasoned that "It]he [constitutional]

convention of 1879, like the convention of 1849, by failing to make further

provisions as to the grand jury left to the Legislature all questions affecting

the grand jury not expressly covered by the Constitution;" id. at 241.

This explanation of the constitutional and common law framework

of the Legislature's domain over "all questions affecting the grand jury"

_.) supported the Court's more recent decision in Daily Journal, supra,

20 Cal.4 th 1117. There, the Court decided that in the absence of a statutory

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provision for disclosure, grand jury materials could not be released to the

public; id. at 1120. The Court reviewed a number of statutes governing

disclosure and other issues relevant to grand juries, and observed that "[b]y

enacting the statutes governing the 'exceptional cases' [] ha which a court

may order disclosure of grand jury materials, the Legislature has, in effect,

occupied the field; absent express legislative authorization, a court may not

require disclosure;" id. at 1124-1125 (foomote 5, citing to FiR___As,supra, 6

Cal.2d 230, 241, omitted).

Ultimately, with reference to the issue of how the California

Constitution operates to allocate authority for making decisions about

disclosure of secret grand jury materials, the Court used defml"tive terms in

.... confm-ning its decision to "reject the conclusion that the superior court had

authority under Califomiadaw to disclose all grand jury materials pursuant

to its supervisory role over grand jury proceedings" since "there is no basis

for allowing an exercise of inherent judicial power by the superior court to

circumvent existing legislation in this area, when such power is not

•required for the accomplishment of a constitutionally defined judicial

function;" Daily Journal, supra, 20 Cal.4 _hat 1130-1131 (footnote omitted).

Accordingly, the rule is clear: it is only the Legislature, and not the

courts through inherent powers, which has sole authority to create any

exception to the rule barring disclosure of secret grand jury materials.

3. There is No Inherent Judicial Authority to Create

Exceptions to the Rule of Nondisclosure.

The Court's decisions in McClatchy and Daily Journal permit no

ambiguity, of understanding: in California, there is no basis for an exercise

of inherent judicial power to .permit public disclosure of secret grand jury

materials.

Bolstering the rejection of any argument that courts have inherent

powers to manufacture exceptions to statute when it comes to grand jury

nondisclosure, the Daily Journal decision cited to Allen v. Pavne (1934) 1

Cal.2d 607, 608 which had examined the legislative history of the grand

jury, and which "revealed a practice of defining and delimiting its powers

-bye . _ an area, we dec--61inedto resort-to the very

vague justification of inherent or implied powers;" Daffy Journal, supra, 20

Cal.4 *hat 1125 (internal punctuation omitted).

Still, some few continue to insist on arguing the point. In opposing

petitions for review in the present matter, Goldstein suggested that the

prohibition against exercise of inherent judicial powers to order disclosure

was merely a limited prohibition which applied only when the disclosure

was to a news organization or the public at large, rather than to a discrete

individual such as Goldstein who wanted to use the secret information in a

limited fashion for his personal aims.

That suggestion is not borne out in examining existing authority.

Rejecting a similar suggestionphrased in terms of permitting disclosure in

the particular casebefore it on a "sui generis" basis,the Court declined that

invitation while conveying its "doubt that the rule adoptedby the Court of

Appeat could be .sonarrowly circumscribed. Its effect would, instead, bed,

immediate and far-reaching: whenever the media, or any member of the

public, requested disclosure in a matter of public interest, a court would

have authority to pierce the veil of grand jury secrecy based on a simple

balancing test .... [this] request for so fundamental a change in existing

law is more appropriately addressed to the Legislature;" Daily Journal,

supra, 20 Cal.4 ta at 1133-1134 (emphasis supplied). Accordingly, the

prohibition against "public disclosure" of secret grand jury materials

applies not just to news organizations, but applies as weU to "any member

of the public" such as Goldstein.

Goldstein also suggested that the reasons for secrecy are no longer

important, given the passage of time between 2007 and release of the grand

jury report in 1990, since the involved individuals on whose testimony the

report was based might no longer be affected. This contention too has been

examined and rejected: "In]or does the legislative scheme permit a court to

disclose grand jury testimony, absent express statutory authority, because it

concludes that the privacy interests of a particular target or witness are de

minirnis;" Daily Journal, supra, 20 Cal.4 th at 1133. That is because there is

more at stake, namely '_:he continued importance of maintaining the

heritage of grand jury secrecywhen there has not been an indictment, in

order to preserve the effectiveness of the grand jury process, as well as to

protect witnesses against adverse consequences, including damage to

reputation, of disclosing their testimony;" Daily Journal, supra, 20. Cal.4 th6

at 132 (citation omitted).

There is no room for disagreement over the fact that California

courts have consistently rejected the idea of a hypothetical inherent power

of courts to order disclosure of grand jury materials when such disclosure is

not authorized by statute.

II.

THE RULE OF NONDISCLOSURE IS NOT AFFECTED BY A

DIFFERING CONCEPT APPLICABLE TO

FEDERAL GRAND JUR!ES

A. The Federal Grand Jury Serves a Different Function than the

California Grand Jury.

The Court has examined the question of California's unique grand

jury system in reference to the differing role the grand jury plays in other

jurisdictions, including the federal system. In People v. Superior Court,

(1973 Grand Jury for Santa Barbara County) (1975) 13 Cal.3d 430, the

Court considered the grand jury's "important 'watchdog' function over the

operation of many facets of local government" in reference to the question

whether the Superior Court must accept or may refuse to file a report which

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exceeds the grand jury's legal authority; id. at 433. The Court found a

power of "limited review [] implicit in the statutory scheme" (ibid.)

whereby "It]he court's sole function in this realm lies in its power to

prevent the official filing of an illegal report;" id. at 434.

Distinguishing the California grand jury from grand juries in other

jurisdictions, the Court noted that "[i]n California, unlike some other

American jurisdictions, [fla.] the grand jury's role as a 'watchdog' over the

operations of a variety of local government activities has a long and well

respected heritage," throughout which %he Legislature has continualIy

expanded the boundaries of the grand jury's investigatory and reportorial

domain;" id. at 436. Contrasting the California and federal systems, the

Court noted that "[f]ederal courts have generally held that federal grand

juries lack authority to issue 'reports' on public affairs;" id. at 436, fla. 4

(citations omitted).

The Court explained the basis for these significant differences by

noting that "[p]ast cases have recognized the valuable and unique role a

grand jury fulfills in carrying out its authorized investigations and reporting

on its findings and recommendations," citing to Monroe v. Garrett (1971)

17 Cal.App.3d 280, 284 for the proposition that "[i]n our system of

government, a Grand Jury is the only agency free from possible political or

official bias that has an opportunity to see the operation of government on

any broad basis. It performs a valuable public purpose in presenting its

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conclusions drawn from that over-view;" People v. Superior Court, supra,

13 Cal.3d at 436-437 (internal punctuation omitted).

It is thus apparent that the unique California "watchdog" grand jury

is a very different creature of government than grand juries in the federal

system, which generally do not perform an investigatory or reportorial

function. This fact strongly suggests that the manner in which the federal

and other similar systems deal with disclosure issues has no pertinence to

the California '`watchdog" grand jury.

B. The Federal Justice System Has a Different Mode of Regulating

Grand Jury Disclosure.

In the federal system, grand juries are regulated under F.R.Crim.P.

6(e)(3)(E)-(G), which rule is entitled "Recording and Disclosing the

Proceedings."

Without repeating the extensive text of these subsections of the

federal rule, it bears remark that by enacting this rule, the United States

Congress has carefully determined the methods of and limitations on

disclosure of materials from federal grand juries which generally do not

operate in a "watchdog" function. There is no parallel in California rules of

procedure.

Courts at the federal level have spoken to the issue of how Congress

reacted to its understanding of the way federal grand juries operate.

"Indeed, recognition of the occasional need for litigants to have access to

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grand jury transcripts led to the provision in Fed.RuleCrim.Proc.

6(e)(2)(C)(i) that disclosure of grand jury transcripts may be made 'when

so directed by _ court preliminarily to or in connection with a, judicial

proceeding;" Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 220

(fla. omitted).

It was with specific reference to F.R.Crim.P. 6 that standards

evolved for balancing a need for disclosure against a need for continued

secrecy with regard to federal grand juries; id. at 222.

It is notable that federal courts do not go beyond, but instead act

within, the legislative mandate imposed by F.R.Crim.P. 6. In this respect,

there is a parallel to the California rule which bars disclosure except when

permitted by legislative enactment; see McClatch¥, supra, 44 Cal.3d at

1167, Daily Journal, supra, 20 Cal.4 _ at 1124-1125, and Sontag, supra, 64

Cal. at 527 ("In this State the whole matter [of disclosing Grand Jury

proceedings] is regulated by statute.").

This difference in the mode of regulating grand juries also reflects

the contrast between federal and state constitutions, whereby the California

legislature is invested with the whole legislative power of the state unless

restrained by constitutional provisions, as opposed to the federal

constitution's grant of power to Congress for the purpose of legislative

enactments; Fitt____s_s,supra, 6 Cal.2d at 234.

In summation, the analogy of federal authority on grand jury

13

disclosure is of doubtful usefulness when one considers that federal grand

juries are concerned largely with criminal rather than investigatory

functions (in direct opposition to California's grand juries), and because the

California Legislature by virtue of its constitutional role within this state

has completely occupied the field of grand jury disclosure (Daily Journal,

supra, 20 Cal.4 m at 1124-1125), a situation without parallel in the federal

system.

C. California is Not Bound by Federal Authority on Watchdog

Grand Jury Disclosure.

As explained above, over the last 150 and more years California has

developed its own approach to dealing with the unique California grand

jury which serves a significantly different purpose than the federal grand

iury generally does.

Of course, decisions of the United States Supreme Court are binding

"on state courts when a federal question is involved, such as

constitutionality of a statute or construction of the federal Constitution or

statutes;" 9 Witkin, California Procedure, Appeal § 941, p. 982 (4_ Ed.

1997; citations omitted).

In the matter at bench, however, there is no such federal question

involved, since the issues concerned are the effect of California law

regarding a legislative enactment and the inherent power of the judiciary,

rather than constitutionality of a statute or construction of the federal

14

constitution or statutes.

Insofar as the authority of courts lower than the United States

Supreme Court is concerned, "the prevailing view appears to be that the

decisions of the lower federal courts, although entitled to great weight, ared_

not binding on state courts;" id. at § 942, p. 983. Once again, the matter in

question has to do with California legislative enactments and the inherent

power of California courts; rather than interpretation of federal rules of

criminal procedure concerned with a grand jury that has a different function

and operating rules than the California %vatchdog" grand jury.

This issue has been addressed by our state's courts. '_Federal

authorities are most persuasive when the issue involves a state statute or

rule which is based upon a federal enactment. The issue before us arises

from the California statutory scheme regulating criminal grand jury

proceedifigs, which is not based upon any federal enactments .... the

federal cases discussing grand jury procedure are based on the Federal

Rules of Criminal Procedure, which are different from the California

statutory scheme. Accordingly, we resolve the issue at bar on the basis of

California law and decline defendants' invitation to follow federal law and

adopt the balancing test derived from Douglas Oil Co. v. Petrol Stops

Northwest (1979) 441 U.S. 211;" People v. Superior Court (Mouchaourab)

(2000) 78 Cal.App.4 m 403,427 (citations and fla. omitted).

Accordingly, the non-California authority on which Goldstein's

15

position is based is not dispositive of the issue, and provides no grounds for

deviating from the established California rule on grand jury nondisclosure.

III.

CONCLUSION6

The Court of Appeal decided in error that California courts have

inherent power to disclose secret grand jury proceedings, and compounded

the error by invoking federal procedures which are not relevant to the

unique structure and function of California's "watchdog" grand jury.

The only way to obtain disclosure of secret grand jury materials is

by following statutory enactments devised by the California Legislature.

There is no inherent judicial authority to invade the constitutional function

of the Legislature in this regard.

For the sake of maintaining the California grand jury in its long-

established role, these real parties in interest pray the Court to determine

that the grand jury materials sought by petitioner Goldstein remain subject

to the rule of nondisclosure, and to reverse anything contrary in the Court

of Appeal's decision.

16

DATED: November 9, 2007 Respectfully submitted,

COLLINS, COLLINS, MUIR &STEWART, LLP

TOMAS A. GUTERRESDOUGLAS FEE

Attorneys for Petitioners for Review/Real Parties in Interest

COUNTY OF LOS ANGELES,JOHN VAN DE KAMP, andCURT LIVESAY

17

CERTIFICATE OF WORD COUNT

I certify that pursuant to California Rules of Court, Rule 8.204, the

attached (Brief on the Merits) is proportionately spaced, has a typeface of6

13 in Time.s New Roman font and contains 3,378 words based upon the

word count from Microsoft Word 2002.

Dated: November 9, 2007 Respectfully submitted,Collins, Collins, Muir & Stewart, LLP

By:

Attorneys for Petitioners forReview/Real Parties in Interest

COUNTY OF LOS ANGELES,JOHN VAN DE KAMP, andCURT LIVESAY

18

PROOF OF SERVICE

(CCP _ 1013(a) and 2015.5)

StateofCalifornia, )) SS.

County of Los Angeles )

l am employed in the County of [] LosAngeles , [] Orange, StateofCalifomia.I am over the age of 18 and not a party to the within action; my business address is:

[] 1100 El Centre Street, Post Office Box 250, South Pasadena, California 91030.

[] 620 Newport Center Drive, Suite 200, Newport Beach, CA 92660-8002

On this date, I served the foregoing document described as BRIEF ON THE MERITS on the interested parties in this actionby placing same in a sealed envelope, addressed as follows:

SEE ATTACHED SERVICE LIST

[]

[]

[]

- I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in SouthPasadena, California. I am"readily familiar" with the firm's practice of collection and processing correspondence for mailing.Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at:South Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service ispresumed invalid if postal caucellation date or postage meter date is more than one day after date of deposit for mailing inaffidavit.

(BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fitly prepaid via Certified Mail Return ReceiptRequested to be placed in the United States Mail in South Pasadena, California.

BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY

[] (BY ELECTRONIC FILING AND SERVICE) - I served a hue copy, with all exhibits, electronically on designated

recipients listed on the attached Service List.

[]

[]

[]

FEDERAL EXPRESS - I mused the envelope to be delivered to an authorized courier or driver authorized to receivedocuments with delivery fees provided for.

(BY FACSIMILE) - I caused the above-desaribed document(s) to be transmitted to the offices of the interested parties at thefacsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (626)243-1111 (So. Pasadena) or (9,19)718-4801 (Newport Beach) indicated all pages were lmusmitted.

(BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s).

Executed on November 9, 2007 at: South Pasadena, California.

[] (STATE_ - I declare uader penalty of perjury under the laws of the State of California that the above is hue and correct.

[] (FEDERAL) -t declare that I am employed in the office era member of the bar of this court at whose-direction the service wasmade.

Lilly Y.F@i_ _

Thomas Lee Goldstein v. City of Long Beach_ et al.Case No.: CV04-9692 AHM (Ex)

Our File No. 16293SERVICE LIST

David S. McLane Theresa M. Traber, Esq.KAY-E, McLANE & BEDNARSKI LLP128 North Fair Oaks Avenue

Pasadena, CA 91103(626) 844-7660; fax: (626) 844-7670ATTORNEYS FOR PETITIONERTHOMAS L. GOLDSTEIN

Traber & Voorhees

128 N. Fair Oaks Avenue, Suite 204

Pasadena, CA 91103(626) 585-9611; fax(626) 577-7079CO-COUNSEL FOR PETITIONERTHOMAS L. GOLDSTEIN

Clerk of/he Court D. Brett Bianco, EsqFor deliveryto: Hon. Peter Espinoza, Div. 123L.A. Superior CourtCriminal Justice Center

210 West Temple S/feetLos Angeles, CA 90012-3210

Court Counsel

Los Angeles Superior Court111 N. Hill Slreet, Room 546

Los Angeles, CA 90012-3014(213) 974-5137; fax (213) 625-3964ATTORNEYS FOR LOS ANGELES COUNTYSUPERIOR COURT

Clerk of/he Court

California Court of AppealSecond Appellate Dis/riot, Div. Three300 So. Spring Slreet, F1.2, N. TowerLos Angeles, CA 90013-1212(213) 830-7000

Gordon W. Trask, Esq.Principal Deputy County Counsel648 Kenneth Hahn Hall of Administration

500 West Temple SlreetLos Angeles, CA 90012-2713ATTORNEY FOR LOS ANGELES COUNTY and

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Supreme Court of CaliforniaRonald Reagan Bldg300 S. Spring St., F1. 2Los Angeles, CA 90013-1233

(213) 830-7570Original and 13 copies via CA OverniteGuaranteed overnite delivery

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