IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT, DIVISION ONE D068939 ____________________________________________ CITY OF SAN DIEGO, Plaintiff and Appellant, v. SAN DIEGANS FOR OPEN GOVERNMENT, Defendant and Respondent. _____________________________________________ Appeal from the San Diego Superior Court (Case No. 37-2012-00097148-CU-MC-CTL) The Honorable Gregory Pollack, Judge _____________________________________________ PETITION FOR REHEARING _____________________________________________ Attorneys for Defendant and Respondent, SAN DIEGANS FOR OPEN GOVERNMENT 1 Received on 10/7/2016 at 12:59 PM John Morris, Esq. (SBN 99075) Paul J. Pfingst, Esq. (SBN 112967) Rachel E. Moffitt, Esq. (SBN 307822) HIGGS FLETCHER & MACK LLP 401 West “A” Street, Suite 2600 San Diego, CA 92101 Telephone: 619.236.1551 Fax: 619.696.1410 TABLE OF CONTENTS Page Table of Authorities 3 I. SUMMARY 4 II. STANDARD FOR REHEARING 5 III. DISCUSSION 7 A. The Statutory Scheme. 7 B. SDOG’s Violation (If Any) Related Only to Section 23301.5. 11 The “Illegality” Misnomer Revealed. 12 C. 1. Introduction. 12 2. The City Carelessly Plants the “Illegality” Seed. 12 The Trial Court Deflects on the “Criminality” Issue. 14 The Trial Court’s Order on the Point. 16 The City Pushes the Illegality Myth Again on Appeal. 17 3. 4. 5. D. E. IV. SDOG Requests the Chance to Brief the Issue. 19 The Practical Conundrum of the Court’s Opinion. 21 CONCLUSION 22 CERTIFICATE OF COMPLIANCE 24 2 TABLE OF AUTHORITIES Page Cases Bence v. Teddy’s Taxi (1929) 101 Cal.App. 748 6 In re Jessup (1889) 81 Cal. 408 6 Jewish Publications v. Gordon (1949) 91 Cal.App.2d 376 6 Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504 9 Palm Valley Homeowners Assn., Inc. v. Design MTC (2000) 85 Cal.App.4th 553 10 Statutes Government Code Section 68081 5, 6, 11, 19 Revenue & Taxation Code Section 19719 Section 23301 Section 23301.5 passim passim passim California Rules of Court Rule 8.204(c)(1) Rule 8.268 24 5 3 I. SUMMARY Defendant and Respondent, SAN DIEGANS FOR OPEN GOVERNMENT (“SDOG”), petitions this Court for rehearing on the basis that its decision (certified for publication) is grounded on two statutes, Revenue & Taxation Code sections 19719 and 2330 that are completely irrelevant here. Together, those statutes make it a crime to represent a corporation suspended for failure to pay taxes. Here, SDOG’s suspension was under a different statute, Revenue & Taxation Code section 23301.5, making it a violation to fail to file required forms. That statute, however, has no criminal implications, and the case law interpreting it is much more forgiving of violations, especially where there are good-faith efforts at revival (like here). In light of the Court’s error in this respect – an error traced easily to the City’s persistent misdirection – SDOG implores the Court, at a minimum, to grant rehearing and modify its opinion to correct multiple references to conduct by SDOG and its attorney characterized as “unethical,” “illicit,” and even “perhaps criminal.” (Slip Opn., pp. 6, 9, 11, 12, 13.) That language was false, extreme, unfair, and highly prejudicial, given the Court’s erroneous reliance on irrelevant criminal statutes that do not apply here. In fairness, those references in the Court’s opinion must be corrected. 4 Beyond that, SDOG respectfully asks the Court to grant a full rehearing to consider anew whether the supposed violation that actually led to its suspension warrants so extreme a consequence as forfeiting almost $580,000 in attorneys’ fees otherwise earned for succeeding in litigation that, according to the trial court, “enforc[ed] an important right affecting the public interest, thereby conferring upon the public a significant benefit.” (3 AA 557:4-9.) In that respect, SDOG also invokes Government Code section 68081, which compels a Court of Appeal to grant rehearing when its decision is based upon an issue – the supposed “criminality” of SDOG’s conduct, and the reasons why SDOG and its attorney acted as they did – not briefed (or even considered) in the trial court, and not briefed in this Court (aside from a few inapposite innuendos in the City’s briefs, never joined as an issue for this Court’s review). II. STANDARD FOR REHEARING California Rules of Court, Rule 8.268 provides that a reviewing court may, “on petition of a party or on its own motion . . . order rehearing of any decision that is not final in that court on filing.” Notwithstanding that rule, there is no statutory authority setting forth the grounds on which a rehearing may be sought or granted. 5 Still, case law and secondary authority establish that a reviewing court may grant a rehearing if its decision contains material misstatements of law or fact, or if the court believes its decision “has done an injustice in the particular case.” (See In re Jessup (1889) 81 Cal. 408, 471.) Misstatements of fact or omissions that, if corrected, would leave the court’s judgment intact are sometimes insufficient to warrant a rehearing (see, e.g., Bence v. Teddy’s Taxi (1929) 101 Cal.App. 748, 753), but may yet warrant a correction to the court’s opinion rendered on denial of the petition. (See, e.g., Jewish Publications v. Gordon (1949) 91 Cal.App.2d 376.) In addition, as mentioned above, Government Code section 68081 actually compels a Court of Appeal to grant a rehearing when its decision is based upon an issue neither raised nor briefed by the parties (as was clearly the case here on this “criminal offense” issue). According to that statute (italics added): Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party. 6 III. DISCUSSION In this section, SDOG first examines the crucial distinctions between Revenue & Taxation Code section 23301 and 23301.5. The point here is to confirm that the former has criminal consequences (and strict “revival” procedures), while the latter has no criminal consequences (and relaxed revival procedures). SDOG then emphasizes that its suspension was, definitively, the result only of a (supposed, but erroneous) violation of section 23301.5, the “noncriminal” statute. Finally, SDOG tracks how the City originally mischaracterized its conduct as criminal, how the trial court then mused upon – but never took evidence on, or decided upon – that possibility, and how it would now be manifestly unfair and profoundly prejudicial for this Court to retain even a whiff of that false suggestion in its published decision. A. The Statutory Scheme. Revenue & Taxation Code section 23301 (“Section 23301”) is a statute that deals with the serious offense of a failure to pay taxes (the life-blood of all state operations, imperative for a state’s survival). It provides, in relevant part, as follows: 7 23301. Except for the purposes of filing an application for exempt status or amending the articles of incorporation . . . the corporate powers, rights and privileges of a domestic taxpayer may be suspended, and the exercise of the corporate powers, rights and privileges of a foreign taxpayer in this state may be forfeited, if any of the following conditions occur: (a) If any tax, penalty, or interest, or any portion thereof that is due and payable [under the relevant Chapter] . . . is not paid on or before 6 p.m. on the last day of the 12th month after the close of the taxable year. Critical to this case, Revenue & Taxation Code section 19719 (“Section 19719”) makes the violation of Section 23301 a misdemeanor (that is, a crime). Specifically, that statute provides, in relevant part: 19719. (a) Any person who attempts or purports to exercise the powers, rights, and privileges of a corporation that has been suspended pursuant to Section 23301 . . . is punishable by a fine of not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1,000), or by imprisonment not exceeding one year, or both fine and imprisonment. Revenue & Taxation Code section 23301.5 (“Section 23301.5”), however, deals with a far less-serious offense: the simple failure to file a required tax form. Specifically, that statute provides, in full, as follows: 8 23301.5 Except for the purposes of filing an application for exempt status or amending the articles of incorporation as necessary either to perfect that application or to set forth a new name, the corporate powers, rights, and privileges of a domestic taxpayer may be suspended, and the exercise of the corporate powers, rights and privileges of a foreign taxpayer in this state may be forfeited, if a taxpayer fails to file a tax return required by this statute. Critical to this case, Section 19719 does not make the violation of Section 23301.5 a crime. A failure to abide that statute may be a “violation,” but it is not “illicit,” and it surely is not a “crime.” SDOG explained that distinction to this Court in response to the City’s appeal. (See RB, p. 15 [“This distinction is important because although SDOG’s corporate status was suspended, it was not for failure to pay taxes.”].) SDOG’s Respondent’s Brief also explained how the case law distinguished between a failure to pay taxes (which compels an absolute cessation of litigation), and a simple failure to file forms (which is deemed to be “procedural,” and litigation can later be “validated” with proper corporate revival, given the “strong public policy disfavoring pleas in abatement”). (See generally, RB, pp. 1018, citing, inter alia, Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504, 513.) 9 Indeed, that very point is perfectly illustrated in the authority cited by this Court to suggest SDOG’s conduct was “unethical and perhaps criminal.” (Slip Opn., p. 11, citing the clearly inapposite Section 19719, plus Palm Valley Homeowners Assn., Inc. v. Design MTC (2000) 85 Cal.App.4th 553, which expressly recognizes the difference between a corporation that fails to pay its taxes [where “the client’s disability would have been clear, and the attorney’s duty to report that to the court would also have been clear”], and a corporation that fails to comply with simple filing requirements [where “curing the default is simple,” where “[a]ll the client corporation must do is file the required statement . . . ,” and where a client’s good or bad faith efforts to cure any deficiency has bearing upon the equitable consequences of the violation].) In sum, the principal point here is simply that there is a critical distinction between a Section 23301 violation and a Section 23301.5 violation. One is unforgiving and has criminal implications; the other is mostly a formality, can be cured with good-faith efforts (as were clearly undertaken here) (see 2 AA 413-414), and does not have criminal implications. The difference is huge. One maybe warrants insinuations of possible criminal misconduct; the other absolutely does not. 10 B. SDOG’s Violation (If Any) Related Only to Section 23301.5. The record on this point is unequivocal: In April of 2012, SDOG was suspended for a (supposed) violation of Section 23301.5 (specifically, for a supposed failure to file returns for the “Taxable Year 06/09”). (3 AA 394 [reflecting in the “Notice” section a reference only to Section 23301.5, and reflecting a “blank” space in the area for “Amount Due”]. See also 3 AA 388 [a form “Final Notice Before Suspension/Forfeiture” from the Franchise Tax Board (“FTB”) to SDOG, reflecting, in two separate places, a tax “Balance Due” of “$0.00”].)1 1 SDOG states throughout this Petition that it was suspended for a “supposed” violation of Section 23301.5. It is not SDOG’s intention here to “blame shift,” to “deflect attention,” or to “obfuscate.” (Slip Opn. p. 13.) SDOG intends only to highlight that the trial court never took evidence or made findings, and the parties never briefed to this Court, any of the details of SDOG’s suspension (whether it was proper in the first place, whether notice of the suspension was sent to the right address, whether SDOG’s attorney had actual knowledge of it, etc.). Indeed, those inquiries, SDOG submits – properly understood in the context of a Section 23301.5 violation – require factual development in the trial court before this Court should resolve the just consequences, if any, of SDOG’s violation. SDOG returns to this point at the end of this Petition, when it invokes Government Code section 68081 to request the opportunity for further briefing on a matter that clearly influenced the Court’s ruling. 11 SDOG’s principal point here is that its suspension was the result of a supposed failure to file certain tax forms, not a failure to pay taxes. SDOG’s violation, if any, was not a misdemeanor, and not even potentially a crime. And again, while that violation might be (or might not be) sufficient to deny SDOG’s claim for attorneys’ fees, it provides no basis to even suggest (multiple times, no less) that the conduct of SDOG or its attorney was “illicit” or “perhaps criminal.” C. The “Illegality” Misnomer Revealed. 1. Introduction. The Court’s error in adopting this “criminal conduct misnomer” is so fundamental that it warrants exploration of how it infected the record. In short, the record confirms that the City first propagated the notion, that the trial court “spotted the issue” but explicitly declined to consider or rule upon it, and that this Court has now essentially “adopted” (and advanced) a misconception on which there is no factual record, and which the parties never briefed in this Court. 2. The City Carelessly Plants the “Illegality” Seed. Recall, then, that after this Court reversed the trial court and ruled that the City’s proposed tax was illegal, the matter was remitted to the trial court. At that point, SDOG (along with a co-defendant, “Shapiro”) filed a seemingly-routine motion seeking Lodestar fees of 12 about $590,000, plus an “enhancement” times two. (2 AA 117, 177178.) The “legality” of SDOG’s conduct was not then at issue. It prevailed in the litigation; it seemed entitled to fees as a matter of law. The City opposed, arguing that “SDOG cannot and should not be awarded attorneys’ fees for litigation it had no right to pursue and knew it had no right to pursue” (because SDOG, for whatever reason, was suspended when it filed its Answer, a fact SDOG did not dispute). (3 AA 465:22-23, emphasis omitted.) However, after acknowledging that a court should dismiss claims only in “extreme situations” (3 AA 457:1-6), the City cited to Revenue & Taxation Code section 19719, subdivision (a) (the inapplicable criminal statute) (3 AA 465:25-28), and fanned the flames with this: “Now, despite knowing from the start its participation was illegal, SDOG’s counsel asks to be rewarded for [his] behavior . . . .” (3 AA 466:21-467:2, italics added.) SDOG filed reply papers in support of its motion for fees, explaining why its request was reasonable. However, SDOG knew its suspension was under Revenue & Taxation Code section 23301.5 (the “non-criminal” statute), and knew the “criminal” insinuations in the City’s papers were included only to be defamatory and had no relation to the legal issues raised in the City’s motion. Accordingly, SDOG stayed on point and did not respond to the inflammatory allegations of criminal misconduct. 13 3. The Trial Court Deflects on the “Criminality” Issue. At the hearing on the motion for fees, the trial court picked up the City’s thread and suggested (erroneously) that SDOG’s conduct was “violative of [Section 19719], which makes it a misdemeanor possibly resulting, per terms of the statute, in imprisonment not exceeding one year.” (RT, p. 7:22-25.) Still, the trial court was careful to limit the import of its comments: “So we have – and I’m not making any finding with regard to whether Mr. Briggs [SDOG’s counsel] did or did not violate that statute, but, certainly, it was inappropriate legal representation, and the Court is not going to condone that by awarding attorneys’ fees for such representation.” (RT 8:1-6.) The City’s attorney continued to twist the misnomer, stating: “I think the fact that it was a criminal act to actually be in this case, period,” means, in essence, that “it wasn’t reasonable that they were in this case at all.” (RT, p. 9:5-13, italics added.) The trial court responded simply that SDOG’s attorney had “provid[ed] quality lawyering which obtained an excellent result for his client” (RT, p. 12:15-17), but the City attorney conflated again, stating, “That’s sanctionable conduct. That’s bad faith. That’s a crime, Your Honor.” (RT, p. 17:24-25, italics added.) 14 The trial court commented to SDOG’s attorney (“You might not be smiling if you get criminally prosecuted”) (RT 13:8-9), but still kept its balance, adding that “there may be a lot of evidence the other way.” (RT 13:16-17 [still, however, making erroneous reference again to Section 19719].) The trial court then tried to wrap it up, stating: “Mr. Briggs may be in a whole heap of trouble with, not only the State Bar, but [also] potential criminal prosecution, but I’m not addressing that. I’m just issue spotting.” (RT 14:20-22. See also RT 15:6-7 [“I’m not making any findings on that specifically.”].) Still the City’s attorney would not leave the point alone, misrepresenting again that “all the time [SDOG] spent in this case was . . . because of the criminal act.” (RT 15:20-21, italics added.) The trial court clarified that all it was certain of was that “a paralegal clearly knew about [the suspension]” (RT 15:25), but that maybe “Mr. Briggs was unaware of it himself. I mean, I don’t – we don’t need to go there. If actions are brought against him, he will obtain competent defense counsel, and he may have a response to this.” (RT 16:9-14.) Indeed, the trial court even commented to Mr. Briggs: “Okay, Mr. Briggs, do you want to address the Court? You don’t need to.” (RT 17:16-17.) Knowing that the trial court’s ruling did not turn on this point, knowing that he was being unfairly taunted – in a civil case no less – by the very office that would be prosecuting him 15 if it really believed he committed a crime, Mr. Briggs concluded this was not the time or place for explanations, and told the trial court he did not want to address the point. (RT 17:18.) 4. The Trial Court’s Order on the Point. Soon thereafter, the trial court filed its Notice of Ruling and Statement of Reasons. (3 AA 547.) The trial court noted that SDOG’s “legal efforts resulted in a published opinion (and, therefore, a citable precedent, reversing a trial court decision which had upheld what was determined to be an illegal and unconstitutional taxing arrangement.” (3 AA 557:10-12.) Still, the trial court declined to award SDOG any fees for the time period during which it was suspended. (3 AA 554:3-10.) At that point, the trial court made several comments reflecting that it had not addressed – much less resolved – any issues concerning criminal culpability. (See, e.g., 3 AA 550:11 [“even if one were to conclude that the Briggs law firm fraudulently concealed the suspended corporate status of SDOG . . . ”]. See also 3 AA 552:21 [“even if intentional and fraudulent . . .”]. [Briggs “evidently knew . . .”].) See also 3 AA. 553:13 Then, the trial court made this unfortunate, unwarranted comment (later quoted, and expanded upon, by this Court): “Such litigation misconduct constitutes, at best, 16 an ethical lapse, and, at worst, criminal behavior.” (3 AA 553:20-21, citing Section 19719, subd. (a) [the inapposite statute dealing with a failure to pay taxes].) The trial court’s musings regarding “criminality” were unfortunate at the time, but because the entire order confirmed the trial court took no evidence on the point and made no findings on the point, SDOG and its attorneys were not substantially prejudiced. And if the City ever sought to prosecute SDOG or its attorney for some supposed crime, they would defend themselves vigorously and tell their full story then. 5. The City Pushes the Illegality Myth Again on Appeal. In its Opening Brief to this Court from the trial court order awarding SDOG about $300,000 in attorneys’ fees, the City perpetuated the “illegality/criminality” myth, again citing the irrelevant statute (Section 19719), and again referring to SDOG’s “illegal and unethical conduct.” (See AOB, pp. 34, 36, italics added.) The issues legitimately raised in the City’s Opening Brief did not turn on the illegality innuendo, so SDOG confined its Respondent’s Brief to the issues, pointed out it was not suspended for “failure to pay taxes,” and clarified the important distinction in the case law where the suspension was the simple result of failing to file certain required 17 forms. (RB, p. 15.) Otherwise, SDOG accepted that the trial court had exercised its broad discretion in cutting its fee request and did not challenge the substantial reduction. This Court then analyzed the case – albeit based on the misconception that the conduct of SDOG and its attorney may have been criminal – and reached a very bright line holding: attorneys’ fees should never be awarded “when a suspended corporation files an answer in a validation action and both the corporation and its attorney know it is suspended and it is not revived before the expiration of the deadline to appear in that action.” (Slip. Opn., pp. 23.) That ruling is may be proper in a straight Section 23301 case; but it is almost certainly too broad in the context of a Section 23301.5 case like this. Here, though, SDOG’s summary point is still simply that the Court crossed the fairness line when it added language in multiple places in its published decision suggesting that the conduct of SDOG and its attorney may have been “illicit” or “illegal.” It was a technical violation perhaps, but it was never illicit or criminal.” Thus, at a minimum, the “criminality” misnomer must be corrected here and now; otherwise SDOG and its attorney will never be able to clear their names in the media or in the court of public opinion. 18 D. SDOG Requests the Chance to Brief the Issue. Again, Government Code section 68081 provides that a rehearing “shall be ordered” when a court of appeal “renders a decision . . . based upon an issue which was not proposed or briefed by any party to the proceeding.” Here, the Court’s decision was obviously based upon this misnomer of potential criminal misconduct, A rehearing is now required to address that issue squarely, along with the justifications for SDOG’s conduct in the context of this Section 23301.5 case. A rehearing is all the more warranted given this Court’s views, expressed in its opinion as follows: We do not understand why BLC [SDOG’s law firm] would represent SDOG in the Validation Action and file a verified answer on behalf of SDOG when it knew, as did the corporation, that SDOG was suspended. In light of this clearly unethical and possibly criminal conduct, we expect some explanation of BLC’s actions. BLC provides none. BLC does not explain why it felt compelled to violate the law and make an appearance on behalf of SDOG. BLC does not discuss any exigency in the matter that induced its improper actions . . . . In other words, BLC offers absolutely no justification for its action. (Slip Opn., p. 12.) The fact is, neither BLC nor SDOG offered any “justification for [their] actions” because they acknowledged that – for whatever reason, rightly or wrongly – SDOG was suspended when it filed its 19 Answer, and that fact by itself is what drove the trial court’s decision to cut its fees. But the trial court expressly stated it was not considering any of the “why” questions, and indeed it even basically “Mirandized” Mr. Briggs in open court, telling him he did not need to respond to those insinuations in the context of this case. (RT 13-17.) Now, given this Court’s ruling, based so fundamentally on a critique of the ethical and legal conduct of SDOG and its attorney, SDOG submits it is entitled to the opportunity, by way of remand to the trial court if necessary, to establish facts to explain its actions. Then they want the opportunity to argue why, in the full light of those facts, why their actions were at least reasonable, and why they do not warrant the opprobrium of this Court, the negative media and public attention that has followed the Court’s opinion, or the blanket forfeiture of their otherwise justified claim for fees. Specifically, SDOG wants the opportunity to prove that the FTB sent both the “Warning” and the “Notice” of SDOG’s suspension to the wrong address (despite having the right address); that the suspension was simply for a supposed failure to file required tax forms (and not a failure to pay taxes); that, in fact, SDOG had no obligation to file any tax forms in 2009 (as the FTB later acknowledged, reinstating SDOG and refunding its “revival fee”); that a paralegal learned of SDOG’s suspension only coincidentally; that 20 the paralegal never told BLC’s attorney (Mr. Briggs) about the suspension; and that the paralegal was both prompt and persistent – and ultimately successful – in reconciling the FTB’s records and reviving SDOG’s corporate status. Based on that record, and with renewed attention to the extensive case law holding that a Section 23301.5 violation can essentially be forgiven once the matter has been cleared, SDOG suggests that the Court’s bright-line rule should be limited to the context of a Section 23301 violation (which this was not). E. The Practical Conundrum of the Court’s Opinion. Finally, the Court should grant rehearing to consider the real- world implications of its ruling. That is, for instance, the Court should consider what a conscientious attorney should do, in the context of a Section 23301.5 case (as opposed to a Section 23301 case), if he or she learns shortly before an Answer is due in a Validation Action that the FTB simply confused its name with another corporation, and that it had been wrongly suspended (a situation not too different from what happened here). There would be no conceivable way to resolve the administrative mix-up before the Answer was due. The attorney caught in this conundrum might reasonably conclude that it was not the intention of 21 the statute that the client forfeit a substantive right because of a bureaucratic snafu. Instead, the reasonable attorney would probably file the Answer to protect the client, and then, consistent with all the case law on the subject, work to resolve the situation. At a minimum, the attorney should be given an opportunity, on the record, to explain his or her conduct before having otherwise-earned attorneys’ fees summarily forfeited and being accused in a published decision of “illicit” behavior. IV. CONCLUSION SDOG respectfully asks this Court to reflect fairly on the serious implications of its unwarranted insinuations of criminal misconduct against SDOG and its attorney. All references in the Court’s opinion to even potentially “illegal” conduct must, in fairness, be stricken. Otherwise, SDOG is entitled as a matter of right to a rehearing where the Court should reconsider its basic ruling – taking away the trial court’s award to SDOG of attorneys’ fees for its undeniable public service – and should then remand the case to the trial court for a full inquiry on the “whos” and the “whens” and the “whys” of the parties’ conduct, in order to properly inform this Court’s decision whether the same result is warranted in light of the accurate facts. 22 Dated: October 7, 2016 HIGGS FLETCHER & MACK LLP By: s/ John Morris________________ John Morris, Esq. Paul J. Pfingst, Esq. Rachel E. Moffitt, Esq. Attorneys for Defendant and Respondent, SAN DIEGANS FOR OPEN GOVERNMENT 23 CERTIFICATE OF COMPLIANCE According to Rule 8.204(c)(1) of the California Rules of Court, I certify that this Petition for Rehearing contains 4,638 words, including footnotes. Dated: October 7, 2016 HIGGS FLETCHER & MACK LLP By: s/ John Morris_________________ John Morris, Esq. Rachel E. Moffitt, Esq. Attorneys for Defendant and Respondent, SAN DIEGANS FOR OPEN GOVERNMENT 24 City of San Diego v. San Diegans for Open Government Case Number D068939 PROOF OF SERVICE I, Celeste L. Knapp Reising, declare: I am a resident of the State of California and over the age of eighteen years, and not a party to the within-entitled action; my business address is 401 West "A" Street, Suite 2600, San Diego, California 92101-7913. On October 7, 2016, I served the within documents, with all exhibits (if any): PETITION FOR REHEARING I am familiar with the Court of Appeal, Fourth Appellate District's practice for collecting and processing electronic filings. Under that practice, documents are electronically filed with the Court. The Court's TrueFiling system will generate a Notice of Electronic Filing to any registered uses in the case. TrueFiling will constitute service of the document. Registration as a TrueFiling user constitutes consent to electronic service through the Court's transmission facilities. Under said practice, the following registered TrueFiler users were served (electronically and by U.S. Mail.) City of San Diego : Plaintiff and Appellant Michael Travis Phelps Office of the City Attorney 1200 3rd Ave #1100 San Diego, CA 92101 Catherine Ann Richardson Office of the City Attorney 1200 Third Avenue, Ste. 1100 San Diego, CA 92101 San Diegans for Open Government : Defendant and Respondent Cory Jay Briggs Briggs Law Corp 99 East "C" Street, Suite 111 Upland, CA 91786 Anthony N. Kim Briggs Law Corporation 99 East "C" Street., Suite 111 Upland, CA 91786 Kelly E. Mourning Briggs Law Corporation 99 East C Street, Suite 111 Upland, CA 91786 The Hon. Gregory Pollack Superior Court of the State of California In and for the County of San Diego Hall of Justice Fifth Floor - 330 W. Broadway San Diego, CA 92101 BY U.S. MAIL by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Diego/Carlsbad, California addressed as set forth below. 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 the same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing an affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October 7, 2016, at San Diego, California. biAA__---Pyu, Celeste L. Knapp Rei g