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Request for Judicial Notice - - Plaintiffs' Opposition to Request for Judicial… — Bofa Ca Unemployment (Dkt. 90.2)
No. 3:21-md-02992-GPC-MSB · Doc. 90-2 · Docket on CourtListener
Summary
Plaintiffs' opposition to Bank of America, N.A.'s request for judicial notice in support of its motion to dismiss the Master Consolidated Complaint, filed November 15, 2021 as Document 90-2 in In re Bank of America California Unemployment Benefits Litigation, No. 3:21-md-02992-GPC-MSB, in the U.S. District Court for the Southern District of California. The plaintiffs object to judicial notice of Exhibits 1, 2 and 3 to a declaration offered by the bank. They argue that Exhibit 1, a cardholder agreement, says North Carolina law governs while the version on the bank's website for EDD debit cardholders says California law governs. They argue that Exhibit 2 contains unaccepted redlined changes and that Exhibit 3, an August 24, 2020 letter agreement, is not referenced in the complaint. The filing asks the court to deny the request in its entirety.
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Case 3:21-md-02992-GPC-MSB Document 90-2 Filed 11/15/21 PageID.722 Page 1
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1 JOSEPH W. COTCHETT (SBN 36324) MICHAEL RUBIN (SBN 80618)
2 jcotchett@cpmlegal.com mrubin@altber.com
BRIAN DANITZ (SBN 247403) STACEY M. LEYTON (SBN 203827)
3 bdanitz@cpmlegal.com sleyton@altber.com
4 KARIN B. SWOPE (Pro Hac Vice) MATTHEW MURRAY (SBN 271461)
kswope@cpmlegal.com mmurray@altber.com
5 ANDREW F. KIRTLEY (SBN 328023) CONNIE K. CHAN (SBN 284230)
6 akirtley@cpmlegal.com cchan@altber.com
KAIYI A. XIE (SBN 311182) CHRISTINE SALAZAR (SBN 330468)
7 kxie@cpmlegal.com csalazar@altber.com
8 COTCHETT, PITRE & McCARTHY, LLP ALTSHULER BERZON LLP
840 Malcolm Road, Suite 200 177 Post Street, Suite 300
9 Burlingame, CA 94010 San Francisco, CA 94108
10 Telephone: (650) 697-6000 Telephone: (415) 421-7151
Fax: (650) 697-0577 Fax: (415) 362-8064
11
12 Co-Lead Counsel for Plaintiffs and the Proposed Class
(Additional Counsel Listed Below)
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14
UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
16
17 IN RE BANK OF AMERICA Case No. 3:21-md-02992-LAB-MSB
18 CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION PLAINTIFFS’ OPPOSITION TO
19 REQUEST FOR JUDICIAL
20 NOTICE IN SUPPORT OF
MOTION TO DISMISS MASTER
21 CONSOLIDATED COMPLAINT
22
This Document Relates to All Actions Date: January 10, 2022
23 Time: 11:30 a.m.
24 Crtm: 14A – 14th Floor
Judge: Hon. Larry Alan Burns
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Pltffs’ Opposition to Request for Judicial Notice ISO Motion to Dismiss;
Case No. 3:21-md-02992-LAB-MSB
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1 Plaintiffs respectfully submit this Opposition to Defendant Bank of
2 America, N.A.’s (“BofA”) Request for Judicial Notice (“BofA RJN”) in support
3 of its Motion to Dismiss the Master Consolidated Complaint (“MCC”). Plaintiffs
4 object to the request that the Court take judicial notice of the documents attached
5 as Exhibits 1, 2 and 3 to the Declaration of Robert Chestnut (“Chestnut Decl.”).
6 I. LEGAL STANDARD
7 It is axiomatic that if the “legal sufficiency of a complaint’s allegations is
8 tested by a motion under Rule 12(b)(6), ‘[r]eview is limited to the complaint.’” Lee
9 v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). A court
10 cannot consider “defendants’ factual assertions . . . [and] evidence outside
11 plaintiffs’ pleadings,” id., unless it “convert[s] the 12(b)(6) motion into a Rule 56
12 motion for summary judgment, and . . . give[s] the nonmoving party an opportunity
13 to respond,” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). There are
14 two narrow exceptions.
15 First, a court may take judicial notice of an “adjudicative fact . . . not subject
16 to reasonable dispute.” Fed. R. Evid. 201; Khoja v. Orexigen Therapeutics, Inc.,
17 899 F.3d 988, 999 (9th Cir. 2018). A fact is “not subject to reasonable dispute” if it
18 is “generally known” or “can be accurately and readily determined from sources
19 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. Second, the
20 incorporation by reference doctrine permits a court to consider an extrinsic
21 document “the complaint ‘necessarily relies’ on if (1) the complaint refers to the
22 document; (2) the document is central to the plaintiff’s claim; and (3) no party
23 questions the authenticity of the copy attached to the 12(b)(6) motion.” Marder v.
24 Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (citations omitted).
25 II. ARGUMENT
26 A. Exhibit 1 to the Chestnut Declaration: Cardholder Agreement
27 Exhibit 1 purports to be a copy of the account agreement that sets forth the
28 “terms and conditions of recipients’ California Employment Development
Pltffs’ Opposition to Request for Judicial Notice ISO Motion to Dismiss;
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1 Department Debit Card.” BofA RJN at 4. However, Exhibit 1 is different from the
2 version of the Cardholder Agreement between BofA and Plaintiffs that is available
3 on BofA’s website for California Employment Development Department (“EDD”)
4 Debit Cardholders, which Plaintiffs relied upon, even though both documents state
5 “Effective Date March 1, 2018.” Compare Chestnut Decl., Ex. 1 with Declaration
6 of Brian Danitz (“Danitz Decl.”) ¶ 2, Ex. A. Specifically, section 18 of Exhibit 1 to
7 the Chestnut Declaration states that North Carolina law governs the agreement,
8 whereas the version of the Cardholder Agreement on BofA’s website for EDD
9 Debit Cardholders states that California law governs. Compare Chestnut Decl., Ex.
10 1, §18 with Danitz Decl., Ex. A, §18. 1 Accordingly, Exhibit 1 is not subject to
11 judicial notice because it is subject to reasonable dispute and the document may not
12 be incorporated by reference into the MCC because its accuracy and authenticity is
13 in doubt.
14 Plaintiffs have separately filed a Request for Judicial Notice (Plaintiff’s
15 RJN”) asking the Court to consider the copy of the Cardholder Agreement attached
16 as Exhibit A to the accompanying declaration, which is the publicly available
17 version of the Cardholder Agreement on the BofA EDD Debit Card website at
18 https://www.visaprepaidprocessing.com/eddcard/Program/Terms and requesting
19 that the Court consider that document as incorporated by reference in the MCC.
20 See Plaintiffs’ Request for Judicial Notice In Support Of Opposition to Motion to
21 Dismiss (Plaintiffs’ RJN”).
22 B. Exhibit 2 to the Chestnut Declaration: EDD-BofA Agreement
23 Exhibit 2 purports to be a “true and correct copy of excerpts of the agreement
24 between [BofA] and the California Employment Development Department.” RJN
25 at 5. While Plaintiffs agree in principle that the Court may take judicial notice of an
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1The two documents are otherwise substantially the same. Compare Danitz Decl.,
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Ex. A at 1 with Chestnut Decl., Ex. 1 at 1.
Pltffs’ Opposition to Request for Judicial Notice ISO Motion to Dismiss;
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1 authentic copy of the 2015 EDD-BofA Contract referenced in the MCC, 2 Exhibit 2
2 is neither judicially noticeable nor incorporated by reference into the MCC because
3 there are serious questions about its authenticity. First, it includes uncompleted
4 edits which are plainly visible as redlined changes. See Chestnut Decl., Ex. 2 at 8.
5 These unaccepted redlined changes to the document create a factual dispute as to
6 whether the excerpt is the final version (which it likely isn’t) and casts the
7 authenticity of Exhibit 2 into dispute, rendering it unsuitable for incorporation by
8 reference or judicial notice. See Dual Diagnosis Treatment Ctr., Inc. v. Blue Cross
9 of Cal., 2016 WL 6892140, at *23 (C.D. Cal. Nov. 22, 2016) (“Where an offered []
10 document . . . still has redlining or edits in the document, the Court is unwilling to
11 accept the authenticity of the document even where no party has objected.”);
12 Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (incorporation by reference
13 appropriate only if “no party” questions authenticity); Zapia v. Wells Fargo Bank,
14 N.A., 2018 WL 2461505, at *3 (S.D. Cal. June 1, 2018) (refusing to take judicial
15 notice of a document challenged as inauthentic). Second, Exhibit 2 is also facially
16 different than a copy of the EDD Agreement that California EDD produced to
17 Plaintiffs pursuant to the California Public Records Act (Cal. Gov. Code §6250 et
18 seq.). See Danitz Decl. ¶ 3 and Ex. B. For these same reasons, this altered exhibit
19 is also not a “generally known” adjudicative fact. Fed. R. Evid. 201. Accordingly,
20 the Court should not consider Exhibit 2.
21 C. Exhibit 3 to the Chestnut Declaration: Letter Agreement
22 Exhibit 3 purports to be excerpts from an August 24, 2020 “Letter
23 Agreement” between BofA and EDD. RJN at 5. The document is not incorporated
24 by reference into the MCC, which does not reference or rely upon Exhibit 3 at all,
25 let alone “extensively.” Ritchie, 342 F.3d at 908 (district court could not rely on
26
27 2Plaintiffs’ RJN separately requests the Court to consider the copy of excerpts of
the EDD-BofA Agreement attached as Exhibit B to the Danitz Declaration. See
28
Plaintiffs’ RJN at 1-2; Danitz Decl., Ex. B.
Pltffs’ Opposition to Request for Judicial Notice ISO Motion to Dismiss;
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1 extrinsic declaration to which plaintiff’s complaint did not “extensively” refer);
2 Khoja, 899 F.3d at 1002 (“[I]f the document merely creates a defense to the well-
3 pled allegations in the complaint, then that document did not necessarily form the
4 basis of the complaint.”); cf. In re Immune Response Sec. Litig., 375 F. Supp. 2d
5 983, 995 (S.D. Cal. 2005) (declining to consider documents that were referenced in
6 the complaint when offered as evidence in defense of securities claims, finding that
7 “considering these documents as part of the pleadings at this stage would expand
8 the ‘narrow exception’ and eliminate the distinction between a motion for summary
9 judgment and a motion to dismiss”).
10 Nor is Exhibit 3 subject to judicial notice. Exhibit 3 is not “generally known”
11 or capable of “ready determination from sources of unquestionable accuracy.”
12 Sporting Supplies Int’l, Inc. v. Tulammo USA, Inc., 2012 WL 12892310, at *2 (C.D.
13 Cal. Mar. 5, 2012); see also Nash v. Wachovia Bank, 2016 WL 4771027, at *1 n.4
14 (E.D. Cal. Sept. 14, 2016) (“The contract is not part of the complaint and may be
15 subject to reasonable dispute and therefore is not properly subject to judicial
16 notice.”). If the Court were to consider the existence of Exhibit 3, it should not
17 consider its contents which raise disputed issues of fact. For example, BofA
18 contends that the August 2020 “Letter Agreement” modified certain contractual
19 obligations under the 2015 EDD-BofA Contract, but whether the “Letter
20 Agreement” was itself modified or superseded by other agreements is a factual issue
21 that cannot be resolved on a Rule 12(b)(6) motion. Accordingly, the Court should
22 not consider Exhibit 3. N. Cty. Transit Dist. v. Atlantic Richfield Co., 2006 WL
23 8455571, at *4 (S.D. Cal. Sept. 27, 2006) (“While the Court may take judicial notice
24 of the existence of a contract, it may not take notice of the contents or terms of the
25 contract. The Court, therefore, declines to take judicial notice of the terms of the
26 subject Purchase Agreement.”) (citations omitted); see also Immune Response, 375
27 F.Supp.2d at 995 (“Furthermore, consideration of the exhibits encourages a
28 weighing of factual disputes; a process that is improper on a motion to dismiss.”).
Pltffs’ Opposition to Request for Judicial Notice ISO Motion to Dismiss;
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1 III. CONCLUSION
2 For the foregoing reasons, Plaintiffs respectfully request that the Court
3 deny the Request for Judicial Notice in its entirety.
4 Dated: November 15, 2021 COTCHETT, PITRE & McCARTHY, LLP
5 By: /s/ Brian Danitz
JOSEPH W. COTCHETT
6 BRIAN DANITZ
KARIN B. SWOPE
7 ANDREW F. KIRTLEY
KAIYI A. XIE
8
Dated: November 15, 2021 ALTSHULER BERZON LLP
9
By: /s/ Michael Rubin
10
MICHAEL RUBIN
11 STACEY M. LEYTON
MATTHEW MURRAY
12 CONNIE K. CHAN
CHRISTINE M. SALAZAR
13
Co-Lead Counsel for Plaintiffs and the
14 Proposed Class
15
DAVID S. CASEY, JR. (SBN 060768) JOSHUA B. SWIGART (SBN 225557)
16 dcasey@cglaw.com josh@swigartlawgroup.com
17 GAYLE M. BLATT (SBN 122048) JULIANA G. BLAHA (SBN 331066)
gmb@cglaw.com juliana@swigartlawgroup.com
18 JEREMY ROBINSON (SBN 188325) SWIGART LAW GROUP, APC
19 jrobinson@cglaw.com 2221 Camino Del Rio South
P. CAMILLE GUERRA (SBN 326546) Suite 308
20 camille@cglaw.com San Diego, CA 92108
21 CATHERINE McBAIN (SBN 303911) (866) 219-3343
kmcbain@cglaw.com Fax: (866) 219-8344
22 CASEY GERRY SCHENK
23 FRANCAVILLA BLATT & DANIEL G. SHAY (SBN 250548)
PENFIELD, LLP danielshay@tcpafdcpa.com
24 110 Laurel Street LAW OFFICE OF DANIEL G. SHAY
25 San Diego, CA 92101 2221 Camino Del Rio South, Suite 308
Telephone: (619) 238-1811 San Diego, CA 92108
26 Fax: (619) 544-9232 Telephone: (619) 222-7429
27 Fax: (866) 431-3292
28 Liaison Counsel for Class Plaintiffs Liaison Counsel for Individual Plaintiffs
Pltffs’ Opposition to Request for Judicial Notice ISO Motion to Dismiss;
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1 SIGNATURE ATTESTATION
2 Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative
3 Policies and Procedures Manual, I, Brian Danitz, hereby certify that the content of
4 this document is acceptable to all the signatories herein and that I have obtained
5 counsel’s authorization to affix their electronic signatures to this document.
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/s/ Brian Danitz
BRIAN DANITZ
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Pltffs’ Opposition to Request for Judicial Notice ISO Motion to Dismiss;
Case No. 3:21-md-02992-LAB-MSB 6
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