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CSI AND CC’S OBJECTION TO PLAINTIFFS’ IMPROPER SURREPLY
SCHEPER KIM & HARRIS LLP
WILLIAM H. FORMAN (State Bar No. 150477) wforman@scheperkim.com DAVID C. SCHEPER (State Bar No. 120174) dscheper@scheperkim.com MARGARET E. DAYTON (State Bar No. 274353) pdayton@scheperkim.com 800 West Sixth Street, 18th Floor Los Angeles, California 90017-2701 Telephone: (213) 613-4655 Facsimile: (213) 613-4656 Attorneys for Defendants Church of Scientology International and Celebrity Centre International
SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT
CHRISSIE CARNELL BIXLER; CEDRIC BIXLER-ZAVALA; JANE DOE #1; MARIE BOBETTE RIALES; and JANE DOE #2, Plaintiffs, v. CHURCH OF SCIENTOLOGY INTERNATIONAL; RELIGIOUS TECHNOLOGY CENTER; CHURCH OF SCIENTOLOGY CELEBRITY CENTRE INTERNATIONAL; DAVID MISCAVIGE; DANIEL MASTERSON; and DOES 1-25, Defendants. CASE NO. 19STCV29458
ssigned to Hon. Steven J. Kleifield, Dept. 57
DEFENDANTS CHURCH OF SCIENTOLOGY INTERNATIONAL AND CELEBRITY CENTRE INTERNATIONAL’S OBJECTION TO PLAINTIFFS’ IMPROPER SUR-REPLY
Date: November 6, 2020 Time: 8:30 a.m. Dept.: 57 Complaint Filed: August 22, 2019 Trial Date: None Set
lectronically FILED by Superior Court of California, County of Los Angeles on 10/26/2020 11:58 AM Sherri R. Carter, Executive Officer/Clerk of Court, by E. Gregg,Deputy Clerk
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CSI AND CC’S OBJECTION TO PLAINTIFFS’ IMPROPER SURREPLY
CSI AND CC’S OBJECTION TO PLAINTIFFS’ IMPROPER SUR-REPLY
On October 22, 2020, after Defendants filed their Reply Briefs, Plaintiffs impermissibly filed and served “Plaintiffs’ Sur-Reply to Defendants’ Reply to Plaintiffs’ Opposition to Defenants’ [sic] Motions to Compel Arbitration.” Plaintiffs’ “Sur-Reply” is unauthorized, unjustified, and should be disregarded. Plaintiffs never sought leave to file a sur-reply and have raised entirely new arguments, such as reliance on “Marsy’s Law,” that could have been made in Plaintiff’s Opposition but were not.
I.
Plaintiffs’ Sur-Reply Was Filed Without Leave of Court and Should Be Disregarded
There is no provision in the Code of Civil Procedure for a reply-to-a-reply,
i.e.
, a “sur-reply.” Civ. Proc. Code § 1005 (b), (c) (referring to “moving papers,” “papers opposing a motion,” and “reply papers” and setting deadlines); Cal. Civ. Ctrm. Hbook. & Desktop Ref. § 17:24 (2020 ed.). Where a sur-reply is filed without leave of court, the court “may simply disregard it.”
City of Arcadia v. State Water Res. Control Bd.
, 191 Cal.App.4th 156, 180 (2010). Here, Plaintiffs’ Sur-Reply was filed without leave of court or any justification; thus the Court should “simply disregard it.”
Id.
;
Bozzi v. Nordstrom
, 186 Cal.App.4th 755, 765 (2010).
II.
No Sur-Reply Is Warranted Here
Even if Plaintiffs had sought leave of court to file their sur-reply, a sur-reply is not warranted here. A court has discretion to permit a sur-reply when it is necessary to address
new
issues raised for the first time in a reply brief.
In re Marriage of James & Christine C.
, 158 Cal.App.4th 1261, 1272 (2008).
See In re Marriage of James & Christine C.
, 158 Cal.App.4th at 1272.
However, an issue is not “new” on reply if it “elaborate[s] on issues raised in the opening brief or rebut[s] arguments made by respondent in respondent’s brief.”
American Indian Model Schools v. Oakland Unified School Dist.
, 227 Cal.App.4th 258, 276 (2014). Where no “new” issue is raised on reply, a request to file a sur-reply is properly denied.
See id.
Here, Plaintiffs present no argument for why a sur-reply should be permitted. Plaintiffs’ Sur-Reply does not even assert that Defendants’ raised new arguments in their replies and thus a sur-reply is justified. Instead, it attempts to (1) provide additional arguments and support for Plaintiffs’
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CSI AND CC’S OBJECTION TO PLAINTIFFS’ IMPROPER SURREPLY
meritless argument that enforcement of the arbitration clauses violates the First Amendment, (Sur-Reply at 2:1-21); and (2) raise a wholly new legal argument based on “Marsy’s Law,” which does not respond to
any
argument by Defendants, (
id.
2:22-5:14). Neither argument responds to a “new” issue raised for the first time in Defendants’ Reply Briefs; therefore, the Court should not consider the Sur-Reply. First, regarding the First Amendment issues, Defendants’ Opening Briefs demonstrated that enforcement of Plaintiffs’ arbitration agreements does not violate the First Amendment. (CSI/CC Bixler/JD #1 Mot. at 20:24-21:14; CSI/CC JD #2 Mot. at 20:11-28.) Plaintiffs argued in the Opposition that an order compelling arbitration would violate their First Amendment rights. (Pls.’ Opp. at 6:22-8:28.) Defendants rebutted this argument in their replies by showing that enforcement of the private agreements does not constitute state action. (CSI/CC Reply at 8:11-20.) No sur-reply regarding the First Amendment arguments is appropriate.
See American Indian Model Schools
, 227 Cal.App.4th at 276.
Second, the Sur-Reply’s argument relying upon Marsy’s Law does not respond to
any argument
that Defendants raised in Reply or otherwise. The argument is based on the Victims’ Bill of Rights Act of 2008, also known as Marsy’s Law, which became effective November 5, 2008. 28 CA Const. Art. I, § 28. Neither the Motions, the Opposition, nor the Reply briefs breathe a word about Marsy’s Law. The Sur-Reply never explains or justifies Plaintiffs’ failure to raise an argument based on existing law in the permitted briefing, and to raise it for the first time ever in an improper sur-reply.
1
In a disingenuous attempt to excuse their failure to timely raise this argument, the Sur-Reply claims that Defendants “admit in their reply . . . that Defendant Danny Masterson is their agent and CSI, CCI and RTC are agents of Defendant Masterson and as such, Defendant Masterson retains the same right to demand arbitration in this matter as CSI, CCI and RTC.” (Sur-Reply at 2:23-25.) This statement is false. RTC’s Reply brief argues that Plaintiffs’
allegation
that Masterson is Defendants’ agent and Plaintiffs’
argument
on Demurrer that Masterson is Defendants’ agent
precludes Plaintiffs’
from arguing to the contrary that Masterson is a “third party.” (RTC Reply at 10:9-18.) Further, Defendants’ Opening Briefs argued that Defendant Masterson could enforce the arbitration provision because
Plaintiffs allege
that he is an agent of Defendants CSI, CC, and RTC. (CSI/CC JD #1 Mot. at 14:10-19; CSI/CC JD #2 Mot. at 14:4-9.) Indeed, Plaintiffs’ FAC alleges that Defendant Masterson is Defendants’ agent. (
See, e.g.
, FAC ¶¶
