Judge James C. Chalfant, Case Number: 23STCP02217, Date: 2023-09-26 Tentative Ruling

Respondent California Public Employees’ Retirement System (“CalPERS”) demurs to the Petition filed by Petitioner Alex Duncan (“Duncan”), Ryan Lawrence (“Lawrence”), and Tyler Diamond (“Diamond”).

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioners Duncan, Lawrence, and Diamond filed the Petition against Respondent CalPERS on June 23, 2023, alleging a claim for administrative mandamus. The Petition alleges in pertinent part as follows.

Duncan was hired by the City of Beverly Hills Police Department (“BHPD”) on June 22, 2009. Pet., ¶4. Lawrence and Diamond were hired on May 30, 2012. Pet., ¶4. All three were advised that they were the last police academy class to be categorized in the “3% at age 50” retirement formula. Pet., ¶4.

After extensive negotiation between BHPD and the Beverly Hills Police Officers Association (“POA”) from October 2011 to November 2012, a 2011 Memorandum of Understanding (“2011 MOU”) provided that, pursuant to Government Code (“Govt. Code”) section 21362.2, all current sworn police personnel hired prior to July 1, 2012 are subject to a 3% at 50 retirement formula. Pet., ¶7. Pursuant to Govt. Code section 21363.1, employees hired after July 1, 2012 were subject to a 3% at 55 retirement formula. Pet., ¶7. On November 18, 2012, Petitioner Lawrence confirmed a the Human Resources analyst of the City of Beverly Hills (“City”) that he would be enrolled in the 3% at 50 retirement plan under which he was hired. Pet., ¶8.

On September 8, 2012, without any negotiation with the POA, the City submitted an amended contract to CalPERS which applied the 3% at 55 retirement formula to local safety members entering membership for the first time in the safety classification after the effective date of the September 8, 2012 amendment. Pet., ¶9.

In 2016, Lawrence discovered he was improperly placed in the 3% at 55 retirement category. Pet., ¶10. He later learned Duncan and Diamond were improperly placed as well. Pet., ¶10. On December 22, 2020, Petitioners submitted to CalPERS a Request to Correct Status of Retirement Benefits. Pet., ¶11. On February 2, 2021, CalPERS sent each Petitioner at his home address a Determination Letter that informed him of his right to appeal. Pet., ¶12.

All three Petitioners filed appeals in February 2021. Pet., ¶13. The administrative law judge (“ALJ”) heard the appeals on February 1, April 13, and April 22, 2022. Pet., ¶14. On September 12, 2022, the ALJ issued a proposed order denying the appeals (“Proposed Decision”). Pet., ¶15. The ALJ found that CalPERS had correctly interpreted the City’s 2012 contract amendment with CalPERS as accurately reflecting the retirement provisions in the 2011 MOU, and that the City correctly enrolled Petitioners in the 3% at 55 retirement benefit formula. Pet., ¶15.

On September 13, 2022, CalPERS sent a letter to Petitioners’ counsel Richard Levine, Esq. (“Levine”) but not to Petitioners themselves. Pet., ¶¶ 11, 16. The letter advised Levine that the Proposed Decision had no effect until the CalPERS Board of Administration (“Board”) formally adopted, remanded, or declined to adopt it. Pet., ¶16. The appeal was calendared for the Board’s consideration on November 16, 2022. Pet., ¶16.

On November 22, 2022, CalPERS informed Levine of its decision to adopt the Proposed Decision (“Final Decision”). Pet., ¶17. The letter referenced the Administrative Procedure Act, Govt. Code sections 11521 and 11523, and Title 2 of the California Code of Regulations (“2 CCR”) sections 555-555.4, but not CCP sections 1084-97. Pet., ¶17. The letter did not reference the 90-day deadline in CCP section 1094.6. Pet., ¶17. The attached proof of service did not show service on the three individual Petitioners. Pet., ¶17.

Petitioners seek a writ of administrative mandate compelling CalPERS to set aside the Final Decision, issue a new decision that acknowledges the City erred by communicating a miscategorization of the Petitioners’ retirement benefits to CalPERS, and categorize Petitioners in the 3% at 50 formula. Pet. Prayer for Relief, ¶1. Petitioners also seek costs and attorney’s fees under both CCP section 1021.5 and Govt. Code section 800. Pet. Prayer for Relief, ¶¶ 3-5.

Demurrers are permitted in administrative mandate proceedings. CCP §§1108, 1109. A demurrer tests the legal sufficiency of the pleading alone and will be sustained where the pleading is defective on its face.

Where pleadings are defective, a party may raise the defect by way of a demurrer or motion to strike or by motion for judgment on the pleadings. CCP §430.30(a); Coyne v. Krempels, (1950) 36 Cal.2d 257. The party against whom a complaint or cross-complaint has been filed may object by demurrer or answer to the pleading. CCP §430.10. A demurrer is timely filed within the 30-day period after service of the complaint. CCP §430.40; Skrbina v. Fleming Companies, (1996) 45 Cal.App.4th 1353, 1364.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain; (g) In an action founded on a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP sections 411.35 or 411.36. CCP §430.10.

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318. The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94), but it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. Garcetti v. Superior Court, (“Garcetti”) (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339. The question of plaintiff’s ability to prove the allegations of the complaint or the possible difficulty in making such proof does not concern the reviewing court. Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal.4th 26, 47.

The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher, (1995) 37 Cal.App.4th 1397, 1403. This rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates, (“Vance”) (1995) 36 Cal.App.4th 698, 709.

For all demurrers filed after January 1, 2016, the demurring party must meet and confer in person or by telephone with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. CCP §430.31(a). As part of the meet and confer process, the demurring party must identify all of the specific causes of action that it believes are subject to demurrer and provide legal support for the claimed deficiencies. CCP §430.31(a)(1). The party who filed the pleading must in turn provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. Id. The demurring party is responsible for filing and serving a declaration that the meet and confer requirement has been met. CCP §430.31(a)(3).

“[A] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” State ex rel. Metz v. CCC Information Services, Inc., (2007) 149 Cal.App.4th 402, 413.

If a demurrer is sustained, the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within which the amendment or amended pleading shall be filed. CCP §472a(c). However, in response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. CCP §430.41(e)(1).

The City appeared at the ALJ’s hearing. Dem. RJN Ex. 1, p. 5. The ALJ’s Proposed Decision listed the City as the Respondent and Levine as Petitioners’ counsel. Dem. RJN Ex. 1, pp. 4-5.

The Proposed Decision was issued on September 12, 2022. Dem. RJN Ex. 1. The Proposed Decision found that Petitioners (therein the respondents) failed to establish that CalPERS incorrectly interpreted the City’s contract amendment with CalPERS to be consistent with the 2011 MOU. Dem. RJN Ex. 1, p. 7. It also clarified that the ALJ’s authority under the Public Employees’ Retirement Law (“PERL”) means that it could determine if the City had made a mistake in interpreting the 2011 MOU with respect to a member’s retirement and entering into the 2012 CalPERS contract amendment. Dem. RJN Ex. 1, p. 22.

On November 16, 2022, CalPERS issued a Final Decision adopting the Proposed Decision. Dem. RJN Ex. 1, p.3. On November 22, 2022, CalPERS mailed the Final Decision and a cover letter to Levine via certified mail. Dem. RJN Ex. 1, pp. 1-2, 30. CalPERS also served the Final Decision on Levine electronically the same day. Dem. RJN Ex. 1, p. 30.

The November 22, 2022 cover letter explained that the Final Decision would become effective 30 days after mailing. Dem. RJN Ex. 1, p. 1. Any party could petition the Board for reconsideration within that 30-day period. Id. After the time for reconsideration passed, the Board would lose jurisdiction. Id. Any party could appeal to the courts within 30 days after the last day on which reconsideration can be ordered, citing Govt. Code sections 11521 and 11523. Dem. RJN Ex. 1, p.1.

On December 17, 2020, this court sustained without leave to amend multiple demurrers to the second amended petition in POA on the basis that Petitioners had failed to exhaust administrative remedies for issues concerning the 2011 MOU. Opp. RJN Ex. 2, p.12.

On October 6, 2022, Petitioners filed an opposition to the City’s ex parte application to continue the trial date in POA. Reply RJN Ex. A. In it, Petitioners acknowledged that they received notice of the Proposed Decision on September 12, 2022. Reply RJN Ex. A, p. 2.

On March 22, 2023, Petitioners filed an opposition to the City’s motion for summary judgment in POA. Reply RJN Ex. B. In it, they acknowledged that CalPERS adopted the Proposed Decision as its Final Decision on November 16, 2022. Reply RJN Ex. B, p. 8.

Respondent CalPERS demurs to the Petition on the basis that (1) it is barred by the statute of limitations in Govt. Code section 11523, and (2) the City must be joined as an indispensable party.

On June 26, 2023, CalPERS notified Petitioners of its intent to file a demurrer. Kaur Decl., ¶3. CalPErS also asked Petitioners to join the City as an indispensable party because judgment could not be granted without doing so. Kaur Decl., ¶3. Petitioners refused. Kaur Decl., ¶3.

On July 18, 2023, CalPERS again emailed Petitioners notice that it would file a demurrer based on the statute of limitations and failure to name the City as a party. Kaur Decl., ¶4. Despite several emails on the subject, the parties failed to reach any agreement. Kaur Decl., ¶¶ 5-6.

“[A] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” State ex rel. Metz v. CCC Information Services, Inc., (2007) 149 Cal.App.4th 402, 413 (citation omitted).

CalPERS proceedings are conducted pursuant to the Administrative Procedures Act (“APA”), Govt. Code section 11500 et seq., which generally applies to all state agencies. Pursuant to APA procedure, a petition for writ of mandate must be filed within 30 days after the last date on which reconsideration by the administrative agency can be ordered. Govt. Code §11523. The power to order a reconsideration shall expire 30 days “after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period….” Govt. Code §11521(a).

On November 22, 2022, CalPERS sent Levine the Final Decision and a letter via certified mail and electronic mail. Dem. RJN Ex. 1. The Final Decision stated that it would become effective 30 days after it was mailed. RJN, Ex. 1, p. 3; Govt. Code §11523. There is no allegation or evidence that Petitioners sought reconsideration of the Final Decision. The Petition was filed on June 23, 2023 and CalPERS contends that it was untimely. Dem. at 7-8.

Petitioners cite CCP section 1094.6(b), which requires administrative mandamus to be filed no later than 90 days after the decision becomes final. If there is a provision for written findings, the decision is final on the date it is mailed by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the party seeking the writ. CCP §1094.6(b).

Petitioners rely on Herman v. Los Angeles County Metropolitan Transportation Authority, (“Herman”) (1999) 71 Cal. App. 4th 819, which held that mailed notice to a party’s lawyer does not suffice to trigger the 90-day limitations period in CCP section 1094.6. In Herman, the MTA fired Herman, who was a police force lieutenant. Id. at 822. After an administrative hearing, the MTA rejected an arbitrator’s recommendation and still fired Herman. Id. The MTA sent notice of this decision to the attorney who represented Herman at the administrative hearing. Id. Herman submitted a declaration stating that he did not know who would represent him in his mandamus proceeding until two months after MTA sent the notice. Id. at 827. The appellate court held that notice to the lawyer was insufficient to begin the CCP section 1094.6 90-day limitations clock because CCP section 1094.6(b) expressly requires service by first-class mail “to the party seeking the writ.” Id. at 825-26. It is true that CCP section 1010 provides that notice may be served upon “the party or attorney”, meaning that service on the attorney effects service on the party. Id. at 827. However, CCP section 1010 applies only to pending actions and no action was pending when the final administrative decision is served. Id. Nor do principles of agency apply to impute knowledge to Herman because CCP section 1094.6(f) provides that notice must be given to the party, which defined in pertinent part as the employee who has been suspended or dismissed. Id. at 828. If the Legislature wanted notice to be made to a party or his attorney, it could have said so as it did in CCP section 1010 governing notice in civil actions. Id.

As CalPERS correctly replies (Reply at 2), CCP section 1094.6 applies only to local agencies and CalPERS is a state agency. Govt. Code §20002. While the City is a local agency and the City’s 2011 MOU and 2012 amended CalPERS contract are at issue, it is the Board’s administrative decision that is at issue. CCP section 1094.6 does not apply to that decision; Govt. Code section 11523 does.

In dictum, Herman discussed the APA, noting that it requires notice to the party or person affected for a notice of intent to revoke, suspend, or condition a right, license, or privilege (Govt. Code §11500(b), (c)), §11505(a), (c), §11518, and make the decision effective only after such notice (Govt. Code §11519). 71 Cal. App. 4th at 828-29. Several cases hold that mailed notice to the party under these provisions satisfies the notice provision and that personal notice is not necessary. Id. These cases do not address whether service on an attorney suffices for notice, but they suggest that these APA statutes, which have similar notice sections to CCP section 1094.6, require mailed notice to the party and imply that notice to a party’s lawyer would not suffice. Id.

The limitations statute at issue in this case is Govt. Code section 11523, which requires that a petition be filed within 30 days after the last day reconsideration can be ordered. The power to order a reconsideration expires 30 days “after the delivery or mailing of a decision to a respondent, or on the date set by the agency itself as the effective date of the decision if that date occurs prior to the expiration of the 30-day period….” This language is similar to the language in CCP section 1094.6(b) and, although Herman is not controlling, its reasoning is persuasive. Thus, the 30-day statute of limitations in Govt. Code section did not begin until Petitioners -- not their lawyer -- were served by the Board. There is no evidence that the Board mailed the Final Decision to Petitioners and not just their lawyer.

CalPERS provides evidence that Petitioners had notice of the Final Decision. On October 6, 2022, Petitioners filed an opposition to the City’s ex parte application to continue the trial date in POA. Reply RJN Ex. A. In their opposition, Petitioners acknowledged that they received notice of the Proposed Decision on September 12, 2022. Reply RJN Ex. A, p. 2. On March 22, 2023, Petitioners filed an opposition to the City’s motion for summary judgment in POA. Reply RJN Ex. B. In it, they acknowledged that CalPERS had adopted the Proposed Decision as its Final Decision on November 16, 2022. Reply RJN Ex. B, p. 8.

These facts show that Petitioners’ counsel knew, by March 22, 2023 at the latest, that CalPERS had issued the Final Decision. As Herman acknowledged, an attorney’s knowledge of notice is irrebuttable constructive notice to the client. 71 Cal. App. 4th at 839. Therefore, Petitioners had constructive notice of the Final Decision no later than March 22, 2023.

Does this constructive notice trigger the Govt. Code section 11523 30-day statute of limitations or would a more general limitations period such as CCP section 338 (three or four years) apply? In other words, was CalPERS required to mail the Final Decision to Petitioners themselves in order to benefit from Govt. Code section 11523’s short 30-day limitations period? Herman thought so for purposes of CCP section 1094.6, and the court sees no reason to think differently for Govt. Code section 11523. CalPERS has not shown that the statute of limitations passed.

CCP section 389 governs joinder of parties, and there are two types of parties to be joined: “necessary” and “indispensable”. CCP section 389(a) sets forth the requirements for determining a necessary party: “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impeded his ability to protect that interest or (ii) leave any of the person already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”

A party found “necessary” pursuant to subdivision (a) may then be found “indispensable” pursuant to subdivision (b). County of Imperial v. Superior Court, (“Imperial”) (2007) 152 Cal.App.4th 13, 26. A determination that a party is necessary is the predicate for a determination of whether the party is indispensable. Deltakeeper v. Oakdale Irrigation Dist., (2001) 94 Cal.App.4th 1092, 1100. CCP section 389(b) provides: “If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.”

A necessary party is regarded as indispensable if the court determines, in equity and good conscience, that the action must be dismissed in the party’s absence in light of, inter alia, whether a judgment rendered in the party’s absence will be adequate. TG Oceanside, L.P. v. City of Oceanside, (2007) 156 Cal.App.4th 1355, 1365-66. The controlling test for whether a necessary party is also indispensable is whether “the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined. Save Our Bay v. San Diego United Port District, (“Save Our Bay”) (1996) 42 Cal.App.4th 686, 692. In other words, a third party is indispensable if his or her rights must necessarily be affected by the judgment. Id. Each of the four factors in subdivision (b) must be considered, but “no factor is determinative or necessarily more persuasive than another.” Imperial, supra, 152 Cal.App. 4th at 35.

A failure to join an indispensable party is not a jurisdictional defect in the fundamental sense of jurisdiction. The court has the power to render a decision as to the parties before it in the absence of an indispensable party. It is for reasons of equity and convenience only that a court will not proceed with a case where it determines that an indispensable party is absent and cannot be joined. Save Our Bay, supra, 42 Cal.App.4th at 693.

CalPERS notes that Petitioners are employees of the City, which was a respondent in the underlying administrative proceeding. The Final Decision states that CalPERS properly interpreted the City’s 2012 contract amendment with CalPERS to be consistent with the 2011 MOU. CalPERS has no authority to compel the City to report a different formula or to pay benefits on a different formula than in the 2012 contract amendment. Even under the Board’s plenary authority, it has no duty to command its employer participants to comply with a requirement. Pomona Police Officers’ Association v. City of Pomona¸ (1997) 58 Cal.App.4^th 578, 589-90. Petitioners have not named the City as a Respondent, and they have refused a request to join it. Kaur Decl., ¶3. CalPERS contends that the City must be included because an order that Petitioners would be entitled to a higher pension formula pursuant to the 2011 MOU will require the City to pay additional funds towards Petitioners’ pension benefits. Dem. at 9-10.

Petitioners assert that CalPERS has the authority to review the 2011 MOU evaluate the 2012 contract amendment’s consistency with it. It has the authority to change Petitioners’ retirement category to the 3% at 50 retirement formula to reflect the 2011 MOU. CalPERS has a fiduciary duty to Petitioners and a mandamus ruling in their favor would not require the City to make any change in its financial contributions to CalPERS. Opp. at 10-11.

CalPERS replies that it has a fiduciary, but that does not make it an insurer of the promises made by public employers to their employees. Petitioners also fail to show why a ruling in their favor would not require the City to fund Petitioners’ higher retirement benefits. Reply at 4-5.

As the statute of limitations has not passed, the court need not decide whether the City is indispensable such that the case cannot go forward without it. With respect to necessary party, the court agrees that the City should be joined. This case does not just involve an increased retirement benefit for Petitioners based on their proper classification; it involves the proper interpretation of the City’s 2011 MOU with the POA. The Final Decision clarified that the Board’s authority under PERL allows it to determine if the City had made a mistake in interpreting the 2011 MOU with respect to a member’s retirement and in entering into the 2012 CalPERS contract amendment. Dem. RJN Ex. 1, p. 22. The City was the respondent in the underlying administrative proceeding (Dem. RJN Ex. 1, pp. 4-5) and its counsel appeared at the hearing. Dem. RJN Ex. 1, p. 5. Whether the City made a mistake is an issue for which the City claims an interest and the disposition of which in its absence may impair or impede its ability to protect that interest. See CCP §389(a). This is true whether or not the City would be required to increase its contributions to CalPERS as a result of Petitioners’ claim. The City should have the opportunity to defend its interpretation of the 2011 MOU and 2012 contract amendment in this mandamus case.

The demurrer to the Petition is overruled on the statute of limitations and sustained with respect to joinder. Petitioners have 20 days’ leave to amend to add the City as a party.

[1] Petitioners failed to lodge a courtesy copy of the opposition, and CalPERS failed in the same manner for its reply, in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Both counsel are admonished to provide courtesy copies in all future filings.

[2] In its moving papers, CalPERS requests judicial notice of (1) the Final Decision dated November 22, 2022 (Dem. RJN Ex. 1); and (2) Petitioners’ argument against the Proposed Decision, filed October 19, 2022 (Dem. RJN Ex. 2). Request No. 1 is granted. Evid. Code §452(c). Request No. 2 is denied because the parties’ filings in an administrative case are not official acts of the agency unless there is an administrative record.

Petitioners seek judicial notice of (1) Petitioners’ request for judicial notice in Beverly Hills Police Officer’s Association, et al v. City of Beverly Hills et al., (“POA”), Case No. 19STCV34358, filed on September 20, 2021 (Opp. RJN Ex. 1); (2) this court’s tentative decision decision in POA dated December 17, 2020 (Opp. RJN Ex. 2); and (3) the second amended petition in POA dated February 24, 2020 (Opp. RJN Ex. 3). While these exhibits otherwise would be subject to judicial notice under Evid. Code section 452(d), they must also be relevant. Petitioners rely on their request for judicial notice and second amended petition in POA not to show that they were filed, but for the truth of their contents. See Opp. at 6. This is improper. The requests to judicially notice Opp. RJN Exs. 1 and 3 are denied as irrelevant. The request to judicially notice Opp. RHN Ex. 2 is granted. Evid. Code §452(d).

In reply, CalPERS requests judicial notice of (1) Petitioners’ opposition to the City’s ex parte application to continue the trial date in POA dated October 6, 2022 (Reply RJN Ex. A) and (2) Petitioners’ opposition to the City’s motion for summary judgment in POA dated March 22, 2023 (Reply RJN Ex. B). The requests are granted. Evid. Code §452(d). The existence of these filings is judicially noticed.