[00:00:01] Speaker 03:
Good morning, everyone.

[00:00:03] Speaker 03:
Welcome to our second session this morning.

[00:00:06] Speaker 03:
Again, I thank Judge Simon for joining us from Oregon, and we also thank Judge Thomas, who's joining us from Pasadena today, for this argument.

[00:00:17] Speaker 03:
We have one case in this session, number 23-16-103, Daniel Chung versus County of Santa Clara.

[00:00:28] Speaker 03:
Mr. Chung, when you're ready.

[00:00:45] Speaker 01:
Good morning, your honors.

[00:00:46] Speaker 01:
May it please the court.

[00:00:47] Speaker 01:
My name is Daniel Chung.

[00:00:49] Speaker 01:
I am the appellant in this matter, and I am pro se.

[00:00:53] Speaker 01:
Your honors, there is a world of difference between losing your paycheck for one pay period versus being walked out of your office by three armed investigators.

[00:01:06] Speaker 01:
There is a world of difference between losing one paycheck versus having your face plastered on not one,

[00:01:14] Speaker 01:
but two wanted posters and circulated throughout your office.

[00:01:21] Speaker 01:
This is the crux of this appeal.

[00:01:24] Speaker 04:
And Mr. Chung, and I totally understand what you've just said, but given our limited time, would you mind going straight to the questions raised in the focus order, please?

[00:01:36] Speaker 01:
Yes, Your Honor.

[00:01:38] Speaker 01:
So first, with regards to whether this court can hear the various issues raised by the focus order, the Ninth Circuit General Order 4.2 permits that.

[00:01:50] Speaker 01:
There is precedent for the court to have discretion to consider arguments not raised in the briefs.

[00:01:55] Speaker 01:
This is pursuant to Brown v. Ross and Neal Psychiatric Hospital, as well as Inray Riverside Linden Investment Company.

[00:02:04] Speaker 01:
If there is good cause shown, the court can also consider those arguments, as well as if manifest injustice may occur in this particular situation.

[00:02:13] Speaker 01:
So I believe, especially given the First Amendment issues at play here and the manifest injustice that would result if these issues were not to be considered properly, I do think the court has the discretion

[00:02:29] Speaker 01:
to consider the arguments at play.

[00:02:32] Speaker 01:
And so the argument that I would like the court to especially focus on is, could I have brought the- I believe Judge Thomas has a question.

[00:02:41] Speaker 02:
Yeah, I was going to ask, and maybe this is where you are going.

[00:02:50] Speaker 02:
the of the questions and the focus or which are the ones that you think that we should exercise our discretion to review, even though they weren't necessarily raised in the in the briefs or which is the most important of those issues for you.

[00:03:03] Speaker 01:
So I do think the issue of what causes of action I could have raised in the arbitration was raised in the briefs.

[00:03:10] Speaker 01:
And I think that's proper for the court to consider.

[00:03:12] Speaker 01:
I don't think I could have raised the 1983 action in my collective bargaining agreement arbitration.

[00:03:19] Speaker 01:
The bargaining agreement only permits you to challenge the just cause for the discipline that's imposed.

[00:03:27] Speaker 01:
In the district attorney's office, you can either be warned, suspended, or fired.

[00:03:32] Speaker 01:
And so, like a criminal prosecution, the DA's office can bring certain charges or allegations against you.

[00:03:39] Speaker 01:
and you're confined to those allegations when appealing that discipline.

[00:03:44] Speaker 01:
So if the DA's office decides to impose a discipline of a two-week suspension, that is what you are permitted to challenge through the county charter as well as the collective bargaining agreement.

[00:03:56] Speaker 01:
You are not allowed to just tack on whatever other personal grievances or constitutional claims you may have in a court of law.

[00:04:04] Speaker 01:
So I think those issues

[00:04:06] Speaker 01:
because they were precluded for me to raise in the arbitration proceedings, that's one key reason why the court should not permit the grant of summary judgment that was granted in this case.

[00:04:22] Speaker 01:
In the district court, similarly, I would not have been able to give rise to the just cause claim because there was a contractual agreement between my collective bargaining unit, the GAA, the Government Attorneys Association, as well as the county, saying that if there is a dispute with regards to the level of discipline that is administered, then you must either choose route A or route B.

[00:04:47] Speaker 01:
Route A being you can go through the personnel board or route B, you can pursue our private arbitration.

[00:04:53] Speaker 01:
among the panelists that were given.

[00:04:55] Speaker 01:
So with regards to the causes of action that we're looking at and whether these primary rights overlap, I would point to Blackstone's analysis of primary rights.

[00:05:06] Speaker 01:
I think that his distinctions among what is a primary right allows us to really consider the different harms that are occurring in this particular case.

[00:05:15] Speaker 01:
For example, he talks about how personal security

[00:05:19] Speaker 01:
includes the security against reputational harm.

[00:05:23] Speaker 01:
He also talks about personal liberty being a different primary right.

[00:05:27] Speaker 01:
And finally, he talks about private property being another primary right that is protected under the law.

[00:05:34] Speaker 01:
So when we look at the situation, the contractual agreement between GAA and the county was focused on a property right.

[00:05:42] Speaker 01:
Is taking away a one pay period paycheck permissible?

[00:05:48] Speaker 01:
the district court allegations far surpassed just that private property, right?

[00:05:54] Speaker 03:
So Mr. Judge, I guess you can see then that the suspension issue which was arbitrated would be off the table in terms of the harms that would be available to you under the preclusion doctrine.

[00:06:11] Speaker 01:
So I think this would go to the issue of issue preclusion.

[00:06:15] Speaker 01:
And I think the case that I cited in my reply brief, the George case, I think elucidates this concept that, yes, there may be certain issues now because of the way the arbitrator ruled on these issues.

[00:06:27] Speaker 01:
The jury is now going to hear that.

[00:06:29] Speaker 01:
The jury is going to be able to consider the arbitrator's decision, his analysis, what evidence was considered by him.

[00:06:36] Speaker 01:
and decide if that issue is precluded or not.

[00:06:39] Speaker 04:
The other issues, however... Does the jury decide whether that issue is precluded, or does the district judge decide whether you can even ask the jury for compensation for the suspension?

[00:06:53] Speaker 01:
I guess it could be a mixed question of law and fact.

[00:06:56] Speaker 01:
I think the court would have a threshold issue of determining how preclusive it is, and depending on the court's analysis of its preclusive effect, then the jury could consider

[00:07:06] Speaker 01:
what role this suspension played in the long litany of retaliatory actions that are listed in the second amended complaint, which was the operative complaint before the summary judgment was granted.

[00:07:19] Speaker 01:
So I think that this comes, and we really should distinguish between claim preclusion and issue preclusion in this matter, because things are getting conflated.

[00:07:32] Speaker 01:
On the one hand, District Attorney Rosen is saying he was not a party to this.

[00:07:40] Speaker 01:
There was no privity.

[00:07:42] Speaker 01:
between him and the first arbitration action.

[00:07:45] Speaker 01:
However, when it comes to the res judicata claim, now he is trying to rope himself into that cause of action that now he is trying to completely preclude.

[00:07:55] Speaker 03:
Could you speak then to that separate privity question for purposes of claim preclusion raised in the second question of the focus order?

[00:08:07] Speaker 03:
In other words, there seems to be some California law suggesting that

[00:08:11] Speaker 03:
That in order to have privity on The county's side is that the claim had the claims have to be derivative of one another So could you be precluded by a judgment that the county wasn't liable on your section 1983 claims because they are derivative and

[00:08:31] Speaker 01:
So I think the derivative liability analysis is very interesting because at the crux of it, it's saying that if the liability for the direct tortfeasor has already been decided and precluded, then you can't go after indirect tortfeasors.

[00:08:47] Speaker 01:
However, in this particular case, the roles have been reversed.

[00:08:50] Speaker 01:
District Attorney Rosen is in the most direct line with me in terms of being the most direct tortfeasor.

[00:08:57] Speaker 01:
The action that was decided between GAA and the county and the arbitration was between the county and the union.

[00:09:06] Speaker 01:
So it was an action in which the indirect tortfeasor

[00:09:10] Speaker 01:
was considered.

[00:09:11] Speaker 01:
And so this idea of derivative liability is not going to map out completely.

[00:09:17] Speaker 01:
And I think another consideration is that when the district court initially dismissed all causes of action against the county, it ruled that they are going to have separate lines of liability because the district court rejected the analysis that district attorney Rosen is a final policymaker.

[00:09:36] Speaker 01:
So if he is not a final policymaker,

[00:09:39] Speaker 01:
for the sort of conditions required for Monell liability, then the county's liability is also going to derive from a separate strain of actions or inactions.

[00:09:50] Speaker 04:
Let me go back to this potential confusion between issue preclusion and claim preclusion.

[00:09:55] Speaker 04:
I believe the law is, even in California, that you can have offensive non-mutual issue preclusion.

[00:10:04] Speaker 04:
Number one, I mean, if you disagree with me, feel free to tell me.

[00:10:08] Speaker 04:
But if you can, what's the state of the law in California regarding offensive, non-mutual claim preclusion?

[00:10:16] Speaker 04:
Is that allowed?

[00:10:19] Speaker 01:
So my understanding of California law when it comes to claim preclusion is that it has to involve either the same parties or parties that are in privity.

[00:10:29] Speaker 01:
So this idea that you can have claim preclusion by someone who was not a party to the original action or not in privity to the original action is not permitted under California law.

[00:10:40] Speaker 01:
That's my understanding of that.

[00:10:42] Speaker 04:
And it's DKM and some of it in the park, things like that?

[00:10:44] Speaker 04:
Correct, correct.

[00:10:46] Speaker 01:
Okay.

[00:10:46] Speaker 01:
And so when we look at the essence of that arbitration proceeding, I think it's really hard to ignore the facts that should be viewed in the light most favorable to me.

[00:10:59] Speaker 01:
So for example, Arbitrator Cohn initially saying, I'm not going to consider any evidence on First Amendment.

[00:11:06] Speaker 01:
This is like a judge giving a motion in limine.

[00:11:09] Speaker 01:
When a judge makes a definitive, unequivocal ruling like that from the beginning, it's going to affect the entire strategy and presentation of evidence for the parties.

[00:11:18] Speaker 03:
But we're dealing with a final order, a judgment of the state court that under California law incorporates merges with the merits.

[00:11:28] Speaker 03:
So why isn't that enough under Section 1738 to require a preclusive effect?

[00:11:33] Speaker 01:
So I think Judge Kirwan's judgment order is actually very important for the court to read carefully and consider.

[00:11:40] Speaker 01:
When that confirmation proceeding was occurring between the parties, there was an explicit concession by the county saying, this will not have preclusive effect on the reputational damages that are being pursued in district court.

[00:11:53] Speaker 01:
And in fact, Judge Kirwan incorporated that directly into his order saying, petitioner concedes or petitioner states

[00:12:00] Speaker 01:
that this is not going to have preclusive effect.

[00:12:03] Speaker 01:
So this is the type of fast and loose behavior that I have been pointing out in my reply brief as well as my opening brief, which is when the county or district attorney Rosen is in front of the arbitrator,

[00:12:15] Speaker 01:
They say federal court is when you're going to have your day in court.

[00:12:19] Speaker 01:
When they're in front of the state court judge who's confirming and reviewing the arbitration award, they say the same thing.

[00:12:26] Speaker 01:
They will have their day in federal court.

[00:12:28] Speaker 01:
This limited arbitration decision is not going to have preclusive effect on the reputational damages that are being set.

[00:12:37] Speaker 01:
And then, finally, when we come to federal district court, there is a complete about face saying,

[00:12:43] Speaker 01:
He had his day in court in the arbitration.

[00:12:46] Speaker 01:
The state court has already confirmed this arbitration award.

[00:12:50] Speaker 01:
And therefore, none of the other issues that he has raised in his second amended complaint should be heard by this district court because it all stems from the same primary right.

[00:13:01] Speaker 03:
Mr. Chung, do you want to reserve any time for rebuttal?

[00:13:03] Speaker 01:
May I reserve the remainder of my time, please?

[00:13:06] Speaker 01:
Of course.

[00:13:07] Speaker 01:
Thank you.

[00:13:07] Speaker 03:
Thank you.

[00:13:08] Speaker 01:
Thank you.

[00:13:19] Speaker 00:
Good morning and may it please the court Xavier Brandon on behalf of the appellate Jeffrey Rosen.

[00:13:24] Speaker 00:
I had some prepared initial remarks, but I take it from the court.

[00:13:27] Speaker 00:
We'd like to go straight to the questions posed in the court's clarification order.

[00:13:31] Speaker 03:
That would be helpful.

[00:13:32] Speaker 03:
Thank you.

[00:13:32] Speaker 00:
Wonderful.

[00:13:34] Speaker 00:
On the first question and the second question, we agree.

[00:13:37] Speaker 00:
I think the answer is yes to both for the authorities, which we thank the court for putting a finer point on the issues raised below.

[00:13:45] Speaker 00:
Yes, a state court judgment confirming an arbitration award is a judicial proceeding.

[00:13:50] Speaker 00:
That's made clear in Caldera.

[00:13:52] Speaker 00:
It's entitled to full faith and credit under 28 U.S.C.

[00:13:55] Speaker 00:
1738 and has preclusive effect to the extent it would have in state court.

[00:13:59] Speaker 00:
That's the first question.

[00:14:01] Speaker 00:
The second question, California does California law does treated judgment, which confirms an arbitration award as a final judgment on the merits.

[00:14:09] Speaker 00:
That was a specific finding by the district court below.

[00:14:11] Speaker 00:
And I would point to pages 1314 and 20 of the record on that point.

[00:14:17] Speaker 00:
And so we agree with those two questions.

[00:14:21] Speaker 00:
I think those are relatively straightforward.

[00:14:23] Speaker 00:
If I could turn to the third question in the set, this has to do with this notion of derivative liability and privity for purposes of claim construction.

[00:14:33] Speaker 00:
At the outset, I must note, it's our position.

[00:14:36] Speaker 00:
This argument has been waived.

[00:14:38] Speaker 00:
It was never raised in district court.

[00:14:40] Speaker 00:
It was not raised in either the opening or the reply briefed by the appellant.

[00:14:45] Speaker 00:
And I think there's a good reason to make that finding.

[00:14:48] Speaker 00:
I would note that in Levine, it was specifically raised by the plaintiff or the party seeking to avoid preclusion.

[00:14:55] Speaker 00:
I would point to page 576 of that opinion.

[00:14:59] Speaker 00:
In DKN,

[00:15:00] Speaker 00:
It was, again, specifically raised.

[00:15:02] Speaker 00:
It was explicitly argued, quote unquote.

[00:15:04] Speaker 00:
That's at page 826 of that opinion.

[00:15:06] Speaker 00:
And I would even lump in Cal Sierra, another case cited by the court, specifically at page 668 and 673 of that opinion.

[00:15:14] Speaker 00:
And so because those were raised directly, the court addressed them.

[00:15:18] Speaker 00:
It's not been raised here.

[00:15:19] Speaker 00:
I think this court's precedent makes clear that unless an issue is specifically and distinctly argued,

[00:15:25] Speaker 00:
or raise below, it may not be considered.

[00:15:28] Speaker 03:
Can we correctly decide the preclusion issue under California law without getting to the relationship of the claims, the derivative liability issue?

[00:15:39] Speaker 00:
Well, I think the waiver rules would allow the court to do that.

[00:15:43] Speaker 00:
But even if we go past those rules, I think there's a few things to note about DKN and Levine.

[00:15:50] Speaker 00:
Levine analyzed, well, first of all, I should note that Levine and DKN both describe the fact that many courts had described Restreutekata as an umbrella term.

[00:16:05] Speaker 00:
I think that's the word they used.

[00:16:06] Speaker 00:
In other words,

[00:16:07] Speaker 00:
including both the claim preclusion aspect and the issue of preclusion aspect.

[00:16:11] Speaker 03:
Right.

[00:16:11] Speaker 03:
Well, yeah, I guess let's just think about the claim preclusion aspect here, which is an issue that's raised now, whether various arguments or authorities bear on it.

[00:16:21] Speaker 03:
But even if we assume that Mr. Chung arbitrated to a final judgment a Monell claim against the county,

[00:16:31] Speaker 03:
that failed, why should that preclude a Section 1983 claim against Mr. Rosen?

[00:16:41] Speaker 00:
The answer to that, I think, can be derived by the reasoning employed by the court in Levine.

[00:16:45] Speaker 00:
In Levine, the trial court had analyzed the issue under collateral estoppel, and the court of appeal reasoned that, actually, arrest due to cut or claim preclusion was the right way to deal with that issue.

[00:16:55] Speaker 00:
And in informing its analysis, the Levine court took a very straightforward, very practical approach, saying the result would be the same under both.

[00:17:02] Speaker 00:
And it analyzed the issue under primary rights theory.

[00:17:05] Speaker 00:
Now, in that case,

[00:17:06] Speaker 00:
Both the liability of the party which had arbitrated and the liability of the non-arbitrating party was needed to be predicated on an underlying finding of a breach of fiduciary duty.

[00:17:17] Speaker 00:
And because in arbitration that duty had been found not to exist and not to have been violated, the court noted in Levine, well, if you go down, then there cannot be the writ of liability.

[00:17:27] Speaker 00:
I think the words the court used are telling.

[00:17:30] Speaker 00:
The court described the issue as follows, and if I could read briefly.

[00:17:36] Speaker 00:
Well, first, at page 576 of the opinion, the court articulated that the arbitration award eliminates the basis for a non-arbitrating party's derivative liability.

[00:17:49] Speaker 00:
And then it said, still at 579, quote, plaintiff has asserted an invasion of a primary right and it has been determined that right was not invaded.

[00:17:59] Speaker 00:
The OCHI partners did not breach their fiduciary duty and plaintiff's rightful share of the OCHI profits was not diverted.

[00:18:07] Speaker 00:
It would be anomalous to hold Higashi, the defendant in the proceeding below,

[00:18:11] Speaker 00:
Liable for conspiring to commit a tort or for aiding and abetting its commission or plaintiff has already asserted those rights against the direct tortfeasor The claim was adjudicated and was determined plants rights were not violated.

[00:18:24] Speaker 03:
Well, mr. Brandman I I like blackstone as much as the next judge but this is an awfully kind of abstract and indirect way of trying to get at whether mr. Chung had a fair opportunity to litigate his section 1983 claim against mr. Rosen and

[00:18:39] Speaker 03:
Why shouldn't we just look at it in those terms that the arbitrator didn't and couldn't have decided that issue in arbitration or that claim in arbitration?

[00:18:51] Speaker 00:
I think it's important to recognize what the arbitrator did do.

[00:18:54] Speaker 00:
At the appellant's insistence, the arbitrator adjudicated the issue of whether appellant had First Amendment rights in the speech at issue, the February 14 op-ed, and if so, whether his employer was authorized to regulate that speech.

[00:19:12] Speaker 00:
Now, over objections and over warnings by the arbitrator of the potential preclusive effect of his findings, the arbitrator made exactly those findings.

[00:19:22] Speaker 00:
And he found three things of pertinent note here.

[00:19:25] Speaker 00:
One, that in his op-ed, plaintiffs, sorry, appellant spoke as a public employee rather than a private citizen.

[00:19:34] Speaker 00:
Therefore, his speech was not protected.

[00:19:36] Speaker 00:
Two, that the content of his speech was not the substantial motivating factor for discipline.

[00:19:41] Speaker 00:
And three, even if his speech was protected, there were very good legitimate reasons to regulate this speech, notably the effects of the speech on the operations and justice partner relationships of the DA's office and Rosen specifically.

[00:19:55] Speaker 04:
And that was all in the context of whether or not the suspension was appropriate and in the quantity that it was imposed.

[00:20:03] Speaker 04:
The arbitrator never addressed whether these alleged other actions taken by D.A.

[00:20:08] Speaker 04:
Rosen were appropriate.

[00:20:11] Speaker 04:
The way in which Mr. Chung was allegedly humiliated, the way in which his position was changed, that was never even considered by the arbitrator, correct?

[00:20:23] Speaker 04:
Because all the arbitrator had authority to consider was the specific harm of the suspension, the 10-day suspension.

[00:20:31] Speaker 04:
So when did Mr. Chung get his day in court with respect to these other allegations and these other harms?

[00:20:39] Speaker 00:
So if we look at paragraphs 37 through 39 and 42 of the operative complaint in federal court, and that's at pages 3386 and 3387 of the record, it's very clear, it jumps off from the page, that Rosen's liability under 1983

[00:20:56] Speaker 00:
is the same as the counties in that both are predicated on the notion that there were free speech rights in the February 14 op-ed, and he was retaliated in various different forms because of that speech.

[00:21:10] Speaker 04:
But I thought California law on claim preclusion requires us to look to the specific harms that were done.

[00:21:16] Speaker 04:
And for some of these harms, namely the suspension, Mr. Chung had his day in court before the arbitrator.

[00:21:23] Speaker 04:
But for the other harms,

[00:21:25] Speaker 04:
He didn't, because the arbitrator couldn't consider it.

[00:21:28] Speaker 04:
Doesn't that require that there be no claim preclusion for those other harms?

[00:21:34] Speaker 00:
Respectfully, I disagree.

[00:21:35] Speaker 00:
I think the harm analysis comes down to a primary right.

[00:21:39] Speaker 00:
And the primary right that was asserted both in federal court and in the arbitration is whether he had free speech rights and the right to be not retaliated against for those exercise of rights.

[00:21:49] Speaker 04:
Then correct me and then educate me on this.

[00:21:52] Speaker 04:
To what extent does California law and primary rights also have us look to what are the harms?

[00:21:59] Speaker 04:
Because I thought there was a difference.

[00:22:01] Speaker 04:
Primary rights vary based upon the specific harms.

[00:22:05] Speaker 04:
And I'm hearing you telling me, no, that's not correct.

[00:22:07] Speaker 00:
No, I don't mean to get that impression.

[00:22:10] Speaker 00:
My understanding of the law and how courts have described this analysis is that the harm comes down to, was the primary right that was harmed?

[00:22:18] Speaker 00:
And here, the primary right was the right to be free from retaliation against exercise of free speech rights.

[00:22:24] Speaker 00:
Now, if we're talking about remedies, I think we're now delving into the other issue.

[00:22:28] Speaker 04:
I think one is a harm of getting your pay doctor being suspended without pay.

[00:22:33] Speaker 04:
Another is a harm of being humiliated in front of your colleagues.

[00:22:37] Speaker 04:
A third may be a harm of having your role and position within the office diminished.

[00:22:47] Speaker 04:
And all of those are individual and distinct primary rights.

[00:22:51] Speaker 04:
Is that not correct?

[00:22:52] Speaker 00:
I don't think, I think that's too fine a brush to paint it in.

[00:22:57] Speaker 00:
If I could look at, if we look at, for instance, again, the way he's phrased his allegations and his claims in the federal court, everything according to him derives and is causally connected to this one February 14 op-ed.

[00:23:11] Speaker 00:
And if we look at how this court analyzed the issue in Caldera, in Caldera there were 12 episodes alleged of misconduct, but only one episode was litigated in arbitration.

[00:23:21] Speaker 00:
And this court found that that episode was the linchpin of the entire claim.

[00:23:26] Speaker 04:
And here's where I'm getting confused, because I agree that there was one episode here that caused the later response, the op-ed.

[00:23:35] Speaker 04:
But then there were at least three distinct alleged harms, suspension without pay,

[00:23:41] Speaker 04:
of the alleged public humiliation and the diminishment in office responsibilities, especially done in a quasi-public fashion.

[00:23:51] Speaker 04:
And only one of those got litigated before the arbitration.

[00:23:57] Speaker 00:
Well, actually, I disagree with you.

[00:23:58] Speaker 04:
The other two couldn't be.

[00:24:00] Speaker 00:
Well, actually, if we look at the arbitration record, not only is it suspended, but also the reassignments were litigated in that arbitration, even though it was beyond the scope, which again proves that we're looking at a plenary analysis.

[00:24:13] Speaker 00:
But if we're looking at the distinctions academically of issue preclusion versus claim preclusion, I'd like to point out that

[00:24:20] Speaker 00:
It's fair to say from the record that everyone involved in the district court was analyzing this under the umbrella term analysis.

[00:24:27] Speaker 00:
And I would point the court respectfully to page 62 of the record where appellant's counsel said, quote, as I understand their motion, they're saying we're entitled to the benefit of the collateral stopple and risk due to CAWDA doctrines, and that's why we should cut you off at federal court, end quote.

[00:24:44] Speaker 00:
At page 58 of the record, appellant argued

[00:24:46] Speaker 00:
that the distinction between Restorative Cod and Collateral Estoppel is, quote, a distinction without a difference, end quote.

[00:24:52] Speaker 00:
And it stands for reason that that's why the district court ruled as follows.

[00:24:55] Speaker 00:
This is at page 10 of the record.

[00:24:57] Speaker 00:
DA Rosen brings this motion for summary judgment on the ground that the doctrines of Restorative Cod and Collateral Estoppel prevent Chung from asserting his Section 1983 claim in this action because the same facts and issues giving rise to the claim have already been litigated and finally determined.

[00:25:12] Speaker 00:
as part of the administrative grievance procedure and arbitration."

[00:25:16] Speaker 00:
And so that's really what it comes down to, is that it was undisputed, below and here, that all of the alleged harms

[00:25:24] Speaker 00:
were connected to this one op-ed and whether he had rights in that op-ed such that he could be retaliated against for them.

[00:25:32] Speaker 00:
It's now been adjudicated in a final judgment confirmed by the Superior Court that he had no rights in that op-ed and it could be regulated in any form, in any form of harm.

[00:25:41] Speaker 00:
And so that is what derives the ruling below.

[00:25:44] Speaker 03:
Is that, I mean, I guess the

[00:25:49] Speaker 03:
Can we look at the pickering balancing test in that way, which tends to look at the situation-specific interests in the workplace and the different sorts of actions that are taken?

[00:26:04] Speaker 03:
I mean, why would one pickering analysis with respect to suspension?

[00:26:08] Speaker 03:
apply to any other, I guess, trying to find a word other than harms, but the harm side of the balance to the attorney's office.

[00:26:23] Speaker 00:
So of the Pickering Analysis, as the court's well aware, the first three factors are the appellant's burden to show.

[00:26:29] Speaker 00:
And the one I think that's critical here is that, again, in the same speech that is the basis of the claim in arbitration and in federal court,

[00:26:38] Speaker 00:
It was found that he spoke as a public employee, that he cloaked himself in the mantle and the gravitas of his elected boss, and he tried to add weight to his words through his title.

[00:26:49] Speaker 00:
Those findings are undisputed below, and they're undisputed here.

[00:26:52] Speaker 00:
And so those findings govern the analysis

[00:26:56] Speaker 00:
writ large, because, again, if there's no rights in the underlying speech, which is the basis of all claimed harms, then there can be no liability.

[00:27:05] Speaker 00:
And that's what Levine clearly said.

[00:27:07] Speaker 04:
I'm sorry to go back to fundamentals on this, though, but

[00:27:11] Speaker 04:
I don't understand the point that he spoke as a public employee because I always thought that the requirements of speaking as a public employee is that you are authorized to speak on behalf of the public agency and that it's part of your job duties.

[00:27:28] Speaker 04:
What Mr. Chung arguably did is speak as a private employee but violate the rules of his employment by presenting himself

[00:27:38] Speaker 04:
as a public employee.

[00:27:40] Speaker 04:
That's what caused the discipline.

[00:27:42] Speaker 04:
That's what caused D.A.

[00:27:43] Speaker 04:
Rosen to get upset.

[00:27:44] Speaker 04:
But that doesn't mean, for First Amendment, 1993 purposes, he spoke as a public employee as opposed to a private employee.

[00:27:52] Speaker 04:
Am I wrong?

[00:27:53] Speaker 00:
I don't think your honor is wrong.

[00:27:55] Speaker 00:
I think that those are some considerations in looking at the public employee versus private citizen distinction, but there are others.

[00:28:02] Speaker 00:
We raise them below, such as this court's decision in Barone.

[00:28:05] Speaker 00:
Barone considered whether, given the circumstances of the speech, someone was cloaking themselves in the mantle of their job.

[00:28:12] Speaker 00:
Were they using their title?

[00:28:13] Speaker 00:
Were they in uniform?

[00:28:14] Speaker 00:
Was it during hours in a venue that would usually be associated with their workplace?

[00:28:18] Speaker 00:
Those considerations were found.

[00:28:20] Speaker 00:
There were specific, I see my time has expired.

[00:28:22] Speaker 03:
You can finish answering the question and then we'll see whether there any others.

[00:28:26] Speaker 00:
Thank you.

[00:28:28] Speaker 00:
In those circumstances, the factors that led to that analysis, those were all findings below.

[00:28:34] Speaker 00:
The arbitrator found that because he had done the op-ed on work time,

[00:28:38] Speaker 00:
using work resources, had used his title in the article, had contacted a reporter he knew only because of his job as a prosecutor, all those things supported the analysis.

[00:28:51] Speaker 00:
And so you're correct, Your Honor, there are situations where if it's unauthorized, if it's not within the scope of your regular duties, that could be a factor.

[00:29:00] Speaker 00:
Is it a determining factor?

[00:29:01] Speaker 00:
I don't think so.

[00:29:02] Speaker 00:
But regardless, that's been litigated here, and that derives the entire claim that he's alleged.

[00:29:08] Speaker 03:
Okay.

[00:29:09] Speaker 03:
Judge Thomas, do you have any questions?

[00:29:12] Speaker 02:
I do have a question or just really a clarification to go back to a point at the beginning of your argument.

[00:29:20] Speaker 02:
So I just want to make sure I understand.

[00:29:22] Speaker 02:
So is your position that even if we were to conclude hypothetically,

[00:29:29] Speaker 02:
that that Mr Rosen is not in privity with the county that we should still you would still want us to conclude and still believe that we can conclude that the arbitration has a preclusive effect because Mr Chung.

[00:29:43] Speaker 00:
waived that privity argument is that is that correct i just want to make sure no your honor i think my argument is twofold one is i think it's been waived because it's not been raised below or here in fact the comments i pointed to earlier by uh appellants council would suggest that they had a very different understanding but even if we even this court reached the analysis i think there is enough in the record to find that privity and specifically i would point to the fact that the allegations

[00:30:08] Speaker 00:
in the operative complaint in the federal case show that for both the county and Rosen, the basis of liability, the kernel of liability, is this assertion that he had free speech rights in the February 14 op-ed.

[00:30:20] Speaker 00:
We can also look at, you know, Cal Sierra had a test in which it considered not only the nature of the relationship between the parties, arbitrating and non-arbitrating, we can do that here, the court can consider

[00:30:34] Speaker 00:
that in the Santa Clara County ordinance code, the relationship between Rosen or the district attorney and the county is set out in statute.

[00:30:44] Speaker 00:
And if I could read them very briefly into the record, section 822-31 says,

[00:30:49] Speaker 00:
quote, there is in the county a district attorney's department, hereafter in this chapter referred to as a department, end quote.

[00:30:57] Speaker 00:
Section 32 says, quote, there is in the county and in the department the position of district attorney, end quote.

[00:31:03] Speaker 00:
And section 33 says, subject to provisions of the charter in this code, the district attorney shall have power to appoint, suspend, or remove all assistants, deputies, clerks, and other employees necessary to conduct the work of the department, end quote.

[00:31:16] Speaker 00:
And so I would suggest that the relationship between

[00:31:18] Speaker 00:
a county which acts through its board, department heads, and employees is akin to a relationship between a corporation and its employees, one that California courts have found does establish privity and derivative liability.

[00:31:31] Speaker 00:
I would also suggest that in Cal Sierra, the court considered whether there was evidence that the non-arbitrating party

[00:31:41] Speaker 00:
would consider himself or herself bound by the judgment of the earlier proceeding.

[00:31:47] Speaker 00:
And for that, I would point the court to page 2494 of the record.

[00:31:51] Speaker 00:
Now, admittedly, that is testimony by Rosen in the second administrative appeal, but it's the same procedure as the first one.

[00:31:59] Speaker 00:
And there, Appellants' Council was insistent on developing a record of how

[00:32:05] Speaker 00:
At what point does Rosen's say on disciplinary matters ends?

[00:32:10] Speaker 00:
And at that page, you'll see that Rosen testified, quote, the arbitrator has the final say, end quote.

[00:32:17] Speaker 00:
And so that shows that he'd be bound by the judgment of the arbitrator, but it also shows, to rebut what Appellant argued below, it's different than a monel analysis.

[00:32:27] Speaker 00:
because it's the fact that he does not, that Rosen does not have final say, that makes him not the final policymaking authority.

[00:32:32] Speaker 00:
And so it's improper to draw a dotted line between federal Monell liability standards and California preclusion privity standards, just like it's inappropriate to draw a dotted line without authority between California preclusion principles on one hand and federal common law judicial estoppel.

[00:32:50] Speaker 00:
And so in light of those authorities and what's in the record, we would submit that the court can reach that if it needs to.

[00:32:58] Speaker 00:
But again, we don't think the court needs to affirm.

[00:33:01] Speaker ?:
Okay.

[00:33:02] Speaker 03:
Any follow ups there, Judge Thomas?

[00:33:05] Speaker 02:
No, that's it.

[00:33:05] Speaker 02:
Thank you.

[00:33:05] Speaker 03:
Okay.

[00:33:06] Speaker 03:
Thank you, Mr. Brando.

[00:33:06] Speaker 03:
Thank you, Your Honor.

[00:33:16] Speaker 03:
Your rebuttal, Mr. Jung.

[00:33:23] Speaker 01:
When we look at the record and look at what the arbitrator actually decided everything on, it's beyond a reasonable doubt.

[00:33:35] Speaker 01:
I did not have a full and fair opportunity to litigate the harms that I alleged in my federal complaint.

[00:33:43] Speaker 01:
So many times throughout his arbitration decision, arbitrator Cohen specifically says, on this record, given this particular record,

[00:33:52] Speaker 01:
Given this record, the reason why he says it is blatantly obvious from his 11 line footnote that you just cannot ignore.

[00:34:03] Speaker 01:
He says this was informal, no discovery, barely any rules of evidence.

[00:34:13] Speaker 01:
The court and the arbitrator serve completely different functions with the arbitrator deciding the just cause analysis.

[00:34:22] Speaker 01:
And the court will determine what, if any, weight to give to his decision.

[00:34:28] Speaker 03:
Mr. Chung, what's your response to your friend's reference to paragraphs 37, 38 of the complaint, where it seems like you are framing your complaint against Mr. Rosen as a supervision claim that would be perhaps derivative of the claim that was arbitrated?

[00:34:50] Speaker 01:
But I think this ultimately goes back to our discussion of primary rights.

[00:34:54] Speaker 01:
And the reason why I put in my reply brief that framing is so important is that if you broaden the scope out large enough, you could say anything falls within this primary right.

[00:35:06] Speaker 01:
Is it just the harm of anything bad that is done to you?

[00:35:10] Speaker 01:
Under that umbrella, everything can fit under that.

[00:35:13] Speaker 01:
And so every action that was quote unquote bad would be precluded.

[00:35:18] Speaker 01:
But that's not how we should look at primary rights.

[00:35:20] Speaker 01:
And the Ninth Circuit has been very careful that we should not wield a brush that is too broad like that.

[00:35:25] Speaker 01:
And I think the carve outs that I provided through Blackstone provide a good

[00:35:30] Speaker 01:
framework for us to think about it.

[00:35:32] Speaker 01:
Does this affect personal security?

[00:35:34] Speaker 01:
Does this affect personal liberty?

[00:35:36] Speaker 01:
Does this affect private property?

[00:35:38] Speaker 01:
At the end of the day, Arbitrator Cohn, he could not even arrive at the conclusion that there was just cause for a 10-day suspension.

[00:35:46] Speaker 01:
In fact, he reduced the suspension and said that only five days were worth it based on this record that he heard.

[00:35:54] Speaker 01:
He repeatedly made these sort of disclaimers saying, this is not court.

[00:36:01] Speaker 01:
This is just a labor arbitration.

[00:36:03] Speaker 01:
I'll hear whatever I want to hear.

[00:36:05] Speaker 01:
I know a thing or two about the First Amendment.

[00:36:07] Speaker 01:
This would be akin to a judge making a preclusive motion in limine, then saying, I'm going to rely on my own knowledge and expertise about the First Amendment.

[00:36:16] Speaker 01:
You don't get to put on evidence rebutting or putting on the factors for pickering, the three specific factors that I would be

[00:36:22] Speaker 01:
allowed to go through normally, and then at the end say, oh, you weren't speaking as a private employee on this record, and then telling the federal court, do what you may with this.

[00:36:34] Speaker 03:
Mr. Chung, you're over time, so I'll ask my colleagues if they have any other questions for you.

[00:36:39] Speaker 03:
Okay.

[00:36:40] Speaker 03:
We thank you.

[00:36:41] Speaker 03:
We thank both counsel for your arguments this morning.

[00:36:43] Speaker 01:
Thank you, Your Honors.

[00:36:45] Speaker 03:
And the court will be in recess.