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					        Case 3:08-cv-03267-SI             Document 50             Filed 08/13/2008       Page 1 of 4



 1   Victor M. Sher, SBN 96197
     vsher@sherleff.com
 2   Todd E. Robins, SBN 191853
 3   trobins@sherleff.com
     Marnie E. Riddle, SBN 233732
 4   mriddle@sherleff.com
     SHER LEFF LLP
 5   450 Mission Street, Suite 400
     San Francisco, CA 94105
 6   Telephone: (415) 348-8300
 7   Facsimile: (415) 348-8333

 8   Scott Summy, Admitted in Texas, SBN 19507500
     ssummy@baronbudd.com
 9   Cary McDougal, Admitted in Texas, SBN 13569600
     cmcdougal@baronbudd.com
10
     Carla Burke, Admitted in Texas, SBN 24012490
11   cburke@baronbudd.com
     Celeste Evangelisti, SBN 225232
12   cevangel@baronbudd.com
     BARON & BUDD, P.C.
13   3102 Oak Lawn Avenue, Suite 1100
     Dallas, TX 75219-4281
14
     Telephone: (214) 523-6267
15   Facsimile: (214) 520-1181

16   Attorneys for Plaintiff
     CALIFORNIA WATER SERVICE COMPANY
17
                                      UNITED STATES DISTRICT COURT
18
                                   NORTHERN DISTRICT OF CALIFORNIA
19
                                            SAN FRANCISCO DIVISION
20
     CALIFORNIA WATER SERVICE                                     CASE NO. CIV-08-03267 SI
21   COMPANY,
                                                                  PLAINTIFF CALIFORNIA WATER
22                   Plaintiff,                                   SERVICE COMPANY ’S OBJECTIONS TO
                                                                  EVIDENCE SUBMITTED BY
23           vs.                                                  DEFENDANT LEGACY VULCAN CORP.
                                                                  IN OPPOSITION TO PLAINTIFF’S
24   THE DOW CHEMICAL COMPANY, et al.,                            MOTION TO ENLARGE TIME FOR
                                                                  RESPONDING TO AND HEARING
25                   Defendants.                                  MOTION TO DISMISS PURSUANT TO
                                                                  FED. R. CIV. P. 12(B)(6)
26

27                                                                Hon. Susan Y. Illston

28
                                                              1
     Plaintiff’s Objections to Evidence Submitted By Defendant Legacy Vulcan Corp. In Opposition To Plaintiff’s Motion to
                  Enlarge Time For Responding to and Hearing Motion to Dismiss – Case No. CIV-08-03267 SI
         Case 3:08-cv-03267-SI            Document 50             Filed 08/13/2008       Page 2 of 4



 1            Plaintiff California Water Service Company (“Plaintiff”) hereby objects to the following
 2   evidence submitted by Defendant Legacy Vulcan Corp. (“Vulcan”) in support of its Opposition to
 3
     Plaintiff’s Motion to Enlarge Time.
 4
         I.      Paragraph 3 of the Declaration of Ruth Ann Castro and Exhibit A
 5
              Plaintiff objects to Paragraph 3 of the Declaration of Ruth Ann Castro (“Castro Declaration”)
 6

 7   and Exhibit A thereto on the ground that they are irrelevant, Fed. R. Evid. 401-402, and on the

 8   ground that their probative value, if any, is substantially outweighed by the danger of prejudice or

 9   confusion of the issues, Fed. R. Evid. 403.
10
              As Vulcan acknowledged in its Opposition thereto, Plaintiff’s Motion to Enlarge Time
11
     “seeks to (1) stay the hearing on Vulcan’s Motion to Dismiss until after Plaintiff’s Motion for
12
     Remand is heard and ruled upon, and (2) enlarge the briefing schedule so that Plaintiff’s Opposition
13
     (and Vulcan’s Reply) papers are not due until after the ruling on the Motion for Remand.” Docket
14

15   No. 48 at p. 1. Paragraph 3 and Exhibit A have no bearing on these two issues and no probative

16   value to speak of. Exhibit A, a stipulation filed in an entirely separate state-court case between a
17   different set of plaintiffs and defendants, binds no one in this case.1 Pleadings submitted to another
18
     court in an unrelated proceeding involving different parties are irrelevant because they do not tend to
19
     make the existence of any fact of consequence more or less probable. See Fed. R. Evid. 401;
20
     Interface Group-Massachusetts, LLC v. Rosen, 256 F.Supp.2d 103, 105 n.2 (D.Mass. 2003) (holding
21

22   that other court’s findings that a corporation was subject to personal jurisdiction were “not relevant”

23   to the “separate and distinct determination of personal jurisdiction over” an affiliated officer);

24   Manning v. Washington, 463 F.Supp.2d 1229, 1239 (W.D. Wash. 2006) (holding that “a motion
25
     1
       The following statement in Paragraph 3 calls for particular clarification: “[Ms. Castro] also
26   questioned the need for Plaintiff’s Opposition to Vulcan’s Motion given Plaintiff’s counsel’s recent
     stipulation to dismiss Section 1882 claims brought by its client in another case involving similar
27   claims of groundwater contamination.” Docket No. 49, ¶ 3, emphasis added. Plaintiff respectfully
28
                                                              2
     Plaintiff’s Objections to Evidence Submitted By Defendant Legacy Vulcan Corp. In Opposition To Plaintiff’s Motion to
                  Enlarge Time For Responding to and Hearing Motion to Dismiss – Case No. CIV-08-03267 SI
          Case 3:08-cv-03267-SI           Document 50           Filed 08/13/2008         Page 3 of 4



 1   submitted to another court in a different matter” was irrelevant and striking it from a declaration).
 2   Exhibit A and Paragraph 3 (introducing the exhibit) have no relevance to this Court’s determination
 3
     of whether the hearing on Vulcan’s Motion to Dismiss should be continued or whether the briefing
 4
     schedule should be adjusted accordingly, are not admissible evidence, and should be disregarded by
 5
     the Court. See Fed. R. Evid. 402 (“Evidence which is not relevant is not admissible.”).
 6

 7              Furthermore, Exhibit A and Paragraph 3 should be excluded because the danger of prejudice

 8   or confusion of the issues substantially outweighs any probative value they might possess. See Fed.

 9   R. Evid. 403. Exhibit A has no probative value as explained above, and its introduction here serves
10
     only to confuse the issues at hand: Exhibit A, and its presentation in Paragraph 3, improperly invite
11
     the conclusion that the behavior and decisions of a different plaintiff in a different case – to which
12
     Plaintiff was not a party – should affect the course and order of briefing in this case. Accordingly,
13
     their probative value is substantially outweighed by the risk of prejudice and confusion of the issues
14

15   and they should be excluded. Id.

16        II.      Paragraph 5 of the Declaration of Ruth Ann Castro
17              Plaintiff objects to Paragraph 5 of the Castro Declaration on the ground that it does not
18
     contain specific facts but instead contains impermissible conclusions and argument. Civil Local
19
     Rule 7-5 (b) provides, in pertinent part: “declarations may contain only facts ... and must avoid
20
     conclusions and argument.” Id. In Paragraph 5, Ms. Castro attempts to recast the points argued in
21

22   Vulcan’s Opposition as if they were “Vulcan’s opinion” or something that “Vulcan believes.” The

23   paragraph adds no new factual information. See Docket No. 49 at ¶ 5. This end run around Rule 7-

24   5(b) should be stricken in its entirety.
25   //
26

27
     requests the Court take note that, as Exhibit A shows, the “client” referred to here is not California
28   Water Service Company, but Lamont Public Utility District.
                                                        3
     Plaintiff’s Objections to Evidence Submitted By Defendant Legacy Vulcan Corp. In Opposition To Plaintiff’s Motion to
                  Enlarge Time For Responding to and Hearing Motion to Dismiss – Case No. CIV-08-03267 SI
        Case 3:08-cv-03267-SI             Document 50             Filed 08/13/2008       Page 4 of 4



 1           In conclusion, Civil Local Rule 7-5(b) requires that declarations “conform as much as
 2   possible to the requirements of FRCivP 56(e).” Id. To meet the requirements of Federal Rule of
 3
     Civil Procedure 56(e), a declaration must “set out facts that would be admissible into evidence.”
 4
     Because Paragraphs 3 and 5 of the Castro Declaration and Exhibit A are inadmissible for the reasons
 5
     stated above, they do not meet the requirements of Rule 56(e) and should be stricken in their
 6

 7   entirety. See Civ. L. R. 7-5(b) (“An affidavit or declaration not in compliance with this rule may be

 8   stricken in whole or in part.”). Plaintiff therefore respectfully requests that the Court disregard or

 9   strike the offending paragraphs and Exhibit A to the Castro Declaration.
10

11
                                                        Respectfully submitted,
12
     Dated: August 13, 2008                             SHER LEFF LLP
13

14

15                                             By:      __/s/ Marnie E. Riddle____________

16                                                      VICTOR M. SHER
                                                        TODD E. ROBINS
17                                                      MARNIE E. RIDDLE
18
                                                        BARON & BUDD, P.C.
19
                                                        Attorneys for Plaintiff
20                                                      CALIFORNIA WATER SERVICE COMPANY
21

22

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                                                              4
     Plaintiff’s Objections to Evidence Submitted By Defendant Legacy Vulcan Corp. In Opposition To Plaintiff’s Motion to
                  Enlarge Time For Responding to and Hearing Motion to Dismiss – Case No. CIV-08-03267 SI

				
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