[00:00:03] Speaker 04:
Good morning, your honors.

[00:00:04] Speaker 04:
Thank you.

[00:00:04] Speaker 04:
May it please the court.

[00:00:06] Speaker 04:
My name is Matthew Kida on behalf of plaintiff appellant Marie Thornton.

[00:00:11] Speaker 04:
I have two distinguished colleagues on the other side that are splitting time, so I'd like to do my best to leave five minutes for rebuttal, given the nature of the case.

[00:00:23] Speaker 04:
know that the court is familiar with the facts.

[00:00:25] Speaker 04:
I'm not going to go through those.

[00:00:26] Speaker 04:
This court should reverse the district court's finding that it lacked jurisdiction to consider the claims against the United States because it errantly attempted to use California's recreational use statute as a defense to a claim that occurred on property it doesn't own.

[00:00:44] Speaker 04:
And it respectfully submitted that we submit that it should not have dismissed the claims against the city for failure to say the claim.

[00:00:52] Speaker 04:
And instead, it should have considered the merits of the equitable tolling doctrine on summary judgment.

[00:00:58] Speaker 04:
Now, I'm going to address the claims of the United States first, against the United States first, because I think we all acknowledge if this court affirms the judgment against the United States, there's no basis for supplemental jurisdiction against the city.

[00:01:11] Speaker 04:
So I'll begin there with your permission.

[00:01:14] Speaker 04:
I think the court's focus has to be on the language in the complaint.

[00:01:19] Speaker 04:
And can that complaint be construed as saying that the plaintiff was injured by a fence that was owned and erected by the city that had fallen on excuse me, owned and erected by the United States that had fallen onto property owned by the city and that the injury happened on property owned by the city.

[00:01:40] Speaker 04:
I realized that the complaint is phrased with and ors throughout.

[00:01:45] Speaker 04:
There is nothing prohibiting that.

[00:01:47] Speaker 04:
And in fact,

[00:01:48] Speaker 04:
The district court also, I believe, erred when it invoked rule 11, suggesting that not enough research had been done in terms of the nature of our claims, as if we didn't do our absolute best to make sure that we were alleging absolutely everything that we know at the time.

[00:02:05] Speaker 04:
As this court is aware, this claim started in San Francisco Superior Court in a claim against the city.

[00:02:11] Speaker 04:
And after its witnesses pointed at the United States as the party that had erected and maintained and failed to maintain the fence, realizing that we could not sue the United States in state court, attempted to consolidate the actions in federal court.

[00:02:27] Speaker 04:
And again, the city said, you already have one case going on, you can't have two.

[00:02:32] Speaker 04:
And the United States says that you can't sue us at all.

[00:02:36] Speaker 04:
But the statute that they're relying on, which is section 846 of the California Civil Code, has two ways that a party can avoid liability for accidents or incidents that happen as a result of recreational use.

[00:02:53] Speaker 04:
One, which is subsection A of that statute, is when the accident actually happens on their property.

[00:03:00] Speaker 04:
If this court can construe plaintiff's allegations as saying that it didn't happen on their property, subsection A is out the window.

[00:03:08] Speaker 05:
Well, why?

[00:03:08] Speaker 05:
I mean, the fence is their property.

[00:03:11] Speaker 04:
The accident, the specific language of the statute, and the Supreme Court's answer inclined when answering a certified question from this court, says that the party asserting that affirmative defense has to have a possessory interest in the land

[00:03:28] Speaker 04:
And that's an important distinguishing factor in Klein.

[00:03:32] Speaker 04:
Because in Klein, a party was hit by a car that was driven by a government employee.

[00:03:38] Speaker 04:
And the United States took the position that this recreational immunity statute has to be interpreted exceptionally broadly.

[00:03:45] Speaker 04:
And in Klein, the California Supreme Court said, wait a minute.

[00:03:49] Speaker 04:
All of the language in subsection A arises out of, it uses premises liability language.

[00:03:55] Speaker 04:
It talks about invitees and licensees and advance warning, none of which are elements of a cause of action for general negligence.

[00:04:04] Speaker 04:
And if the cause of action that I'm asking the court to look at here, which I believe is our sole viable claim against the United States, is for negligent maintenance of adjacent property.

[00:04:15] Speaker 05:
And under 17- Well, I'll go back to my question.

[00:04:18] Speaker 05:
The fence is United States property.

[00:04:21] Speaker 05:
And that's what you contend caused the injury.

[00:04:24] Speaker 04:
We're contending the United States, the fence owned by the United States, was on property owned by the city.

[00:04:31] Speaker 05:
Still owned by the, the fence is still owned by the United States.

[00:04:33] Speaker 05:
You're trying to hold, and you're not saying any fence that happened to be on the city property, you're saying the United States government is responsible for this fence because it's its fence, and it failed to maintain its fence.

[00:04:46] Speaker 04:
Still its fence.

[00:04:47] Speaker 04:
My understanding, Your Honor, is that it has to be a real property interest, not just simply.

[00:04:52] Speaker 05:
That may be your understanding, but

[00:04:54] Speaker 05:
What is that based on?

[00:04:56] Speaker 05:
And factually, I'm not sure that the fence isn't a real property interest.

[00:05:00] Speaker 05:
The whole reason for saying it's the responsibility of the United States is that it started on the United States property.

[00:05:07] Speaker 05:
The United States didn't push it over and decide to build a fence on the city's property.

[00:05:12] Speaker 04:
Well, Your Honor, we're alleging that the lack of maintenance by the United States allowed it to fall and become decrepit and then landed on the city's property, and then they

[00:05:21] Speaker 04:
failed to act as a reasonable person and remove it.

[00:05:24] Speaker 05:
And why is the United States responsible for the fence?

[00:05:27] Speaker 04:
Because it's theirs.

[00:05:28] Speaker 05:
Yeah, that's it.

[00:05:29] Speaker 05:
It's theirs.

[00:05:30] Speaker 05:
It's their property.

[00:05:33] Speaker 04:
If Klein still has application, and I think the language of Klein is clear, that the injury has to occur on the property by the defendant asserting the defense.

[00:05:45] Speaker 04:
And that's an 846A.

[00:05:47] Speaker 04:
And if this court disagrees with me on that, I will concede that is our argument.

[00:05:51] Speaker 04:
846A requires the injury to happen on the property of the party asserting the defense.

[00:05:58] Speaker 00:
I think the problem here that I struggle with is decline was different facts.

[00:06:05] Speaker 00:
Here we have California law defines the fence or a fence as real property.

[00:06:12] Speaker 00:
And then we have the statute applies to real property.

[00:06:17] Speaker 00:
And I understand you're saying that's conditioned on premises, but we have a very unusual fact situation in which we have real property that is allegedly now falling onto someone else's real property.

[00:06:32] Speaker 00:
I think that's not really what happened was at issue in Klein.

[00:06:37] Speaker 04:
Exactly.

[00:06:38] Speaker 04:
It was a motor vehicle collision.

[00:06:39] Speaker 04:
Correct.

[00:06:40] Speaker 04:
There was there there was not real property of the United States and unreal property of another I think if 1714 is going to have any application That's the statute that says that you can be liable as an adjacent duty to behave negligently with respect to your own real property

[00:06:57] Speaker 04:
And if that statute is to have any force in effect, it means that you can be liable if you don't take care of your own property such that it injures people on somebody else's property or injures somebody else's property itself.

[00:07:10] Speaker 02:
But you would agree if this case were about the fence falling on federal government property, you have no claim.

[00:07:19] Speaker 04:
Absolutely.

[00:07:19] Speaker 04:
What we're asking this court to do is construe the complaint to say,

[00:07:24] Speaker 02:
But that's because of the recreational immunity.

[00:07:28] Speaker 02:
And so let me give you a separate, suppose there are negligent conditions on federal property and state property alongside each other, but no known boundary.

[00:07:41] Speaker 02:
If someone is using that land recreationally either way, doesn't the recreational immunity still apply?

[00:07:48] Speaker 04:
Your Honor, respectfully no.

[00:07:50] Speaker 04:
And I think that's where we disagree the most with, obviously, our opposing party's brief and the district court's analysis.

[00:07:56] Speaker 04:
We're suggesting that regardless of whether the plaintiff was engaging in recreational activity, if she was not injured on the property, the physical real property owned by the party asserting the defense, in this case, the United States, it doesn't matter.

[00:08:13] Speaker 04:
The recreational use statute is an exception

[00:08:16] Speaker 00:
to the standard duty to use reasonable care to maintain your own premises.

[00:08:31] Speaker 00:
state land and state fence and it would apply for this us property and us fence and you're saying it only does not apply because it was plausible to allege that it was State land and us fence.

[00:08:44] Speaker 04:
That's basically the only scenario which the recreational use would not apply Okay, yes And if I had if I had a bulletproof case if this happened all the time It would have let off my argument with that for obvious reasons.

[00:08:56] Speaker 02:
So but why if if at the end of the day, there's a recreational purpose

[00:09:01] Speaker 02:
however someone is going across properties or climbing fences or what have you, why doesn't that exception end the negligence discussion?

[00:09:10] Speaker 04:
I think that goes back, Your Honor, to the purpose of this statute in the first place, which was we want to interpret it in a manner that encourages people to open their land for recreational use.

[00:09:22] Speaker 00:
So how is your view consistent with that purpose?

[00:09:26] Speaker 04:
Well, by giving the United States the benefit of this immunity statute,

[00:09:30] Speaker 04:
when it failed to maintain its property such that people were injured.

[00:09:34] Speaker 05:
You said it would be okay if the fence had fallen one direction and not okay if the fence falls in the other direction.

[00:09:43] Speaker 05:
I don't understand any logic as to why the California legislature would decide to draw a distinction like that.

[00:09:49] Speaker 04:
Your Honor, I can't speak to why the California legislature chose those words or why the Supreme Court did it.

[00:09:55] Speaker 05:
Well, you haven't really pointed to words.

[00:09:57] Speaker 05:
I mean, the statute could say, but doesn't.

[00:10:00] Speaker 05:
This applies only when the incident occurs on the land real property owned by the landowner.

[00:10:09] Speaker 05:
It doesn't say anything like that.

[00:10:12] Speaker 05:
And if there's not logic in the distinction, I'm struggling as to why we should draw it.

[00:10:17] Speaker 04:
If the language of the statute, and I always tend to speed up when I read, so forgive me in advance, an owner of an estate or any other interest in real property, possessory or non-possessory,

[00:10:29] Speaker 04:
owes no duty of care to keep the premises safe for entry or use by others.

[00:10:35] Speaker 04:
The premises by the person with the possessory interest in real property.

[00:10:39] Speaker 04:
If we're talking about a thing, a chattel, a fence, whatever that you own that's on somebody else's property that's not covered by 846A.

[00:10:50] Speaker 05:
Why not?

[00:10:51] Speaker 04:
Because the let's call it.

[00:10:52] Speaker 05:
Point to me language that says why it's not covered.

[00:10:55] Speaker 04:
Your Honor, respectfully, I think that's what I just said, but I don't want to.

[00:10:58] Speaker 05:
Yeah, well, then maybe it's not very persuasive.

[00:11:00] Speaker 05:
If you agree there's not logic in believing that the legislature would care which way the fence fell, either way, you're talking about the responsibility of the landowner to maintain the fence.

[00:11:13] Speaker 05:
And I don't understand why it is the immunity provided by whatever the number of the statute is, 846, wouldn't extend

[00:11:24] Speaker 05:
to recreational use generally.

[00:11:28] Speaker 05:
And indeed, the statute says keep the premises safe for entry or use by others.

[00:11:35] Speaker 05:
If she's entering the property, that doesn't seem to draw a hard line at the property boundary.

[00:11:46] Speaker 05:
And if the fence is the fence of the United States, I don't see how the language of the statute carves

[00:11:55] Speaker 05:
your client's claim out of the general immunity provided by the statute.

[00:12:01] Speaker 04:
If I may, Your Honor, with respect, may I briefly address my claims against the city and think for a moment while they're speaking and then address your point on my rebuttal just so I don't... Briefly and reserve the rest of your time for rebuttal.

[00:12:14] Speaker 04:
Should this court conclude that the state, sorry, the United States should not have been dismissed for lack of jurisdiction?

[00:12:22] Speaker 04:
We asked this court to consider the factors of the equitable tolling doctrine and conclude that the district court erred in one of two ways.

[00:12:30] Speaker 04:
One, by saying that this should be adjudicated as a 12b6 motion as opposed to a 56 motion, a summary judgment, where both sides could give evidence about their intent and the basis for how the suit came forward.

[00:12:45] Speaker 04:
At the very least,

[00:12:47] Speaker 04:
We asked this court to modify the trial court's judgment to say that the dismissal against the city, in favor of the city, is not with prejudice.

[00:12:56] Speaker 04:
And the reason for that is very important.

[00:12:58] Speaker 04:
As the district court acknowledged, there's parallel litigation going on against the city in San Francisco State Court.

[00:13:05] Speaker 05:
A dismissal for lack of supplemental jurisdiction is inherently without prejudice.

[00:13:09] Speaker 05:
If that's a clarification you want, I don't think that's going to be a problem.

[00:13:13] Speaker 04:
I don't want to talk you out of that answer.

[00:13:15] Speaker 04:
Thank you, Your Honor.

[00:13:18] Speaker 00:
I'll give you three minutes on rebuttal.

[00:13:29] Speaker 03:
Good morning, Your Honors, and may it please the Court, Doug Johns for the United States of America.

[00:13:36] Speaker 03:
As the Court just acknowledged, the United States has an interest in the fence.

[00:13:43] Speaker 03:
And once the United States has an interest in the fence,

[00:13:47] Speaker 03:
Section 846 applies, 846 subsection A, and that precludes the plaintiff's claims for lack of subject matter jurisdiction.

[00:13:58] Speaker 03:
This was the analysis that the district court reached correctly, and it's why that the order of the district court should be affirmed.

[00:14:07] Speaker 03:
In enacting Section 846, the California legislature sought to encourage the broad use of recreational land

[00:14:17] Speaker 03:
for private landowners.

[00:14:19] Speaker 03:
Section 846 has been interpreted broadly throughout its history to make sure that land can be used for recreational use.

[00:14:30] Speaker 03:
In Klein,

[00:14:31] Speaker 03:
the California Supreme Court talked about the types of claims that 846 is supposed to protect or immunize against.

[00:14:40] Speaker 03:
And those claims are property-based claims or premises-based claims.

[00:14:45] Speaker 03:
And in this case, the only claims that are being issued or alleged against the United States are property-based claims.

[00:14:53] Speaker 03:
And you'll see in the plaintiff's complaint

[00:14:56] Speaker 03:
that there are claims relating to warning against this dangerous fence or maintaining the dangerous fence that has allegedly fallen over.

[00:15:07] Speaker 03:
Now, in the plaintiff's complaint, there are two different theories that are alleged.

[00:15:13] Speaker 03:
And Section 846 precludes both of those theories.

[00:15:18] Speaker 03:
The first is if the United States owns the land at issue.

[00:15:22] Speaker 03:
If the United States owns

[00:15:25] Speaker 03:
the landed issue, Section 846 plainly applies and the claims were correctly dismissed.

[00:15:34] Speaker 03:
If the United States is an adjacent landowner such that its improvements or structures fell onto the land of another party, taking those allegations as they are as correct, the United States would still have a property interest

[00:15:52] Speaker 03:
in that fence akin to an easement or a permit or a license.

[00:15:57] Speaker 02:
And so whether the United States is... Council, does that depend on whether the adjacent land is being used for a recreational purpose?

[00:16:05] Speaker 03:
It does, yes.

[00:16:06] Speaker 02:
So if it's not being used for a recreational purpose, the adjacent land at least, then we're in a different situation.

[00:16:12] Speaker 03:
Oh, I apologize.

[00:16:14] Speaker 03:
I misunderstood the question.

[00:16:15] Speaker 03:
No, it doesn't.

[00:16:16] Speaker 03:
And the important clarification here is the premises.

[00:16:20] Speaker 03:
And something that Mr. Keeter reads into the statute is their property.

[00:16:26] Speaker 03:
But 846 doesn't talk about their property.

[00:16:29] Speaker 03:
It's not in the possessive.

[00:16:31] Speaker 03:
Instead, it just refers to the premises.

[00:16:34] Speaker 03:
And so an owner of any interest in real property, whether possessory or non-possessory, owes no duty of care to keep the premises safe.

[00:16:45] Speaker 03:
So it would not matter if the recreational use was necessarily or not necessarily done on the adjacent land.

[00:16:52] Speaker 05:
Well, it does matter what the injured party's use was.

[00:16:56] Speaker 05:
I mean, in this case, the San Francisco property was a golf course.

[00:17:01] Speaker 05:
But if the person who was injured, I'll kind of make this up on the fly, was a

[00:17:09] Speaker 05:
alignment for the electric company because there were buried cables there, and his use of the property was not recreational.

[00:17:20] Speaker 05:
That could speak to the application of the statute generally, but that's not an issue here.

[00:17:25] Speaker 05:
There's not a dispute, at least to us, as to whether plaintiff's use was recreational.

[00:17:30] Speaker 05:
So in that sense,

[00:17:33] Speaker 05:
If I heard Judge Sanchez's question in a different way than you did, recreational use would still be an issue, but it's not issue here because plaintiff was using it recreationally.

[00:17:43] Speaker 03:
That's right.

[00:17:44] Speaker 03:
And that's what the district court found in the United States factual attack that the plaintiff was using the land for recreational use.

[00:17:52] Speaker 03:
She was on an activity to take pictures at the Legion of Honor.

[00:17:58] Speaker 03:
And these were facts that the district court considered in concluding correctly that the plaintiff was engaged in a recreational activity.

[00:18:06] Speaker 03:
And so once we have recreational use,

[00:18:09] Speaker 03:
And a possessory, non-possessory, or really any other interest under the statute in real property, then the statute applies.

[00:18:17] Speaker 03:
And that's what the district court concluded, and that's why the dismissal should be affirmed.

[00:18:24] Speaker 00:
There's been a lot of arguing over what the term, the premises mean.

[00:18:28] Speaker 00:
Do you know of any cases or statutory definitions regarding that particular term?

[00:18:34] Speaker 03:
I do, Your Honor.

[00:18:35] Speaker 03:
There's a older definition in older cases that are not cited in either brief.

[00:18:41] Speaker 03:
where the premises is defined as land suitable for recreational use.

[00:18:47] Speaker 03:
California has since abolished the suitability distinction and instead now uses really any land for recreational use.

[00:18:58] Speaker 03:
And so the premises, I think a fair definition under the California law is land available for recreational use.

[00:19:06] Speaker 03:
And using that definition,

[00:19:08] Speaker 03:
would encourage or promote the intent of the California legislature in encouraging landowners to use their land for recreational activities and not giving the premises an obscure or technical definition to make sure that that land wasn't used.

[00:19:28] Speaker 03:
But land suitable for recreational use was defined at one point in time, but now California no longer uses suitability.

[00:19:39] Speaker 03:
Briefly, Mr. Keita brought up California's general negligence statute, Section 1714.

[00:19:49] Speaker 03:
Section 846 is an exception to 1714.

[00:19:53] Speaker 03:
And so even if there is a common negligence claim, Section 846 would preclude those claims and the entity being alleged to be negligent wouldn't have a duty of care under Section 846.

[00:20:09] Speaker 03:
The California legislature was careful in the types of words and phrasing that it used.

[00:20:17] Speaker 03:
It certainly could have narrowed Section 846A in a way that made it more possessive or narrower, and that's not the intent that it did.

[00:20:25] Speaker 03:
Instead, it used a broad definition to promote recreational use and make sure that it's interpreted broadly.

[00:20:42] Speaker 03:
If there are no further questions.

[00:20:44] Speaker 03:
We're happy to take time back.

[00:20:48] Speaker 03:
This court should affirm the order of the district court.

[00:20:52] Speaker 03:
Thank you, Your Honors.

[00:21:00] Speaker 01:
Thank you.

[00:21:00] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:21:02] Speaker 01:
David Lauck for the San Francisco City Attorney's Office on behalf of the city and county of San Francisco.

[00:21:08] Speaker 01:
At bottom, the district court's dismissal of plaintiff's claim against the city was not an error.

[00:21:13] Speaker 01:
And the only question here is the proper disposition of this appeal.

[00:21:18] Speaker 01:
As Judge Clifton referenced earlier, if this court were to affirm dismissal of the claim against the United States on the FTCA cause of action, then it should vacate the district's court's order and remand with instructions to dismiss without prejudice under Rule 12H3 for lack of subject matter jurisdiction.

[00:21:35] Speaker 01:
However, if this court reverses and reinstates the FDCA claim, then it should affirm dismissal under Rule 12b6 for three reasons.

[00:21:42] Speaker 01:
First, it's uncontested that the statute of limitations had run a year and a half before plaintiff filed her claim in federal court.

[00:21:50] Speaker 01:
The district court did not abuse its discretion in declining to equitably toll plaintiff's claim.

[00:21:56] Speaker 01:
Plaintiff had adequate notice and filed her state court claim on time.

[00:22:00] Speaker 01:
And the plaintiff cites no case to support what she's seeking here.

[00:22:04] Speaker 01:
The California Supreme Court has explained that the equitable tolling doctrine serves the ends of justice where technical forfeitures would unjustifiably prevent a trial on the merits.

[00:22:14] Speaker 01:
Here, this is not an issue.

[00:22:16] Speaker 01:
And as the city's motion to take judicial notice indicates, this nearly four-year-long state court proceeding is still ongoing.

[00:22:23] Speaker 01:
After extensive discovery and deposition-taking, plaintiffs' claims survived summary judgment, and the parties are now preparing to go to trial very soon in February of 2025.

[00:22:32] Speaker 05:
Is that what we're supposed to do?

[00:22:34] Speaker 05:
I mean, I've got the motion for judicial notice.

[00:22:37] Speaker 05:
Is that what we're supposed to take from the motion that, in fact, the day in court will be there, it will simply, if we wind up

[00:22:45] Speaker 05:
ruling in the United States' favor will be in superior court rather than U.S.

[00:22:49] Speaker 05:
District Court.

[00:22:50] Speaker 01:
That's correct, Your Honor.

[00:22:51] Speaker 01:
We just wanted to make sure to assure you that plaintiff's claim is still ongoing in state court.

[00:22:55] Speaker 01:
Nothing has changed in terms of the status of those proceedings.

[00:22:58] Speaker 01:
And finally, I just want to address the claim preclusion issue that Pellant raised for the first time in her reply brief at 23.

[00:23:06] Speaker 01:
She suggests that a district court's dismissal with prejudice would have claim preclusive effects on her state court claim.

[00:23:12] Speaker 01:
I think she's waived that argument because she would have been fully aware that it was a potential issue at the time of her appeal, and she failed to raise it in her opening brief.

[00:23:21] Speaker 01:
And as a result,

[00:23:22] Speaker 01:
The city didn't have the opportunity to brief a response, but I'm happy to provide you with one now, because in any case, that contention is incorrect.

[00:23:30] Speaker 01:
The US Supreme Court in CEMTECH International v. Lockheed Martin has held that the court should look to the law of the other forum to determine any claim preclusive effect of a dismissal under Rule 41B.

[00:23:42] Speaker 01:
Now under California law, a judgment is not final in a race-judicata sense if the substance of the claim or issue was not tried and determined in the first case.

[00:23:52] Speaker 01:
That means dismissal on timing-related affirmative defenses, such as expiration of the forum's limitation period, has no claim preclusive effect on the second case.

[00:24:01] Speaker 01:
And thus, the district court's dismissal with prejudice here will have no claim preclusive effect on her ongoing state claim.

[00:24:07] Speaker 01:
I'm happy to talk about that more if you want.

[00:24:09] Speaker 01:
And unless you have further questions, happy to submit my time.

[00:24:12] Speaker 05:
Would there be any dismissal with prejudice?

[00:24:15] Speaker 05:
I mean, I'm not sure what is it

[00:24:19] Speaker 05:
Might be, if the United States is dismissed because it's not liable, that's a dismissal with prejudice as to the United States.

[00:24:27] Speaker 05:
That's right.

[00:24:28] Speaker 05:
But you're not contending that that should be, that the city should be a beneficiary in any case?

[00:24:33] Speaker 01:
No, no.

[00:24:34] Speaker 01:
In the first circumstance, as I said, that you should vacate and remand with instructions to dismiss without prejudice under Rule 12H3 for lack of subject matter jurisdiction.

[00:24:43] Speaker 01:
That's correct.

[00:24:43] Speaker 01:
OK.

[00:24:47] Speaker 01:
All right.

[00:24:47] Speaker 01:
No further questions.

[00:24:48] Speaker 01:
Thank you.

[00:24:54] Speaker 05:
I'll let you say what you want to, but let me be clear.

[00:24:56] Speaker 05:
Do you oppose the motion for judicial notice?

[00:24:59] Speaker 04:
I do not oppose the motion for judicial notice.

[00:25:01] Speaker 04:
Thank you.

[00:25:02] Speaker 04:
And to the extent my opposing counsel made excellent arguments for my claims not being dismissed with prejudice, I'm glad you record these.

[00:25:12] Speaker 04:
Yes, indeed.

[00:25:13] Speaker 04:
We'll go with that.

[00:25:14] Speaker 04:
I would like to focus the court's attention on this particular paragraph from Klein, which candidly is the heart of the case.

[00:25:23] Speaker 04:
Section 846 sets forth two elements as a precondition to immunity.

[00:25:29] Speaker 04:
The injury must occur on land in which the defendant owns an interest, possessory or non-possessory.

[00:25:39] Speaker 04:
It has to occur on land.

[00:25:41] Speaker 04:
That's the California Supreme Court answer.

[00:25:43] Speaker 05:
Well, but that wasn't really the issue there.

[00:25:47] Speaker 05:
And so the language may have been used, but I've got no reason to think that they're deciding the question teed up for us here, which is, which side of the line did the fence fall on?

[00:25:59] Speaker 05:
So do you have anything to suggest why Klein was trying to speak to the issue that we have to decide?

[00:26:06] Speaker 04:
The court in Klein was trying to explain why a motor vehicle accident operated by a federal employee doesn't fall within the recreational use statute.

[00:26:17] Speaker 04:
And it dissected the language in Klein to say that what the legislature was talking about was premises liability claims against the owner.

[00:26:25] Speaker 00:
Right.

[00:26:25] Speaker 00:
But if we, Klein, as you acknowledge, was not dealing with facts that are materially similar to this.

[00:26:33] Speaker 00:
And arguably, the court was using the term land as shorthand for real property.

[00:26:41] Speaker 00:
That would be one way at least to read Klein and then what we have here is California is very clear that real property includes the improvements on real property like fences.

[00:26:53] Speaker 04:
To the extent this court wants to construe the paragraph that I just read as meaning something other than what it said simply because the facts of Klein were different, I certainly wouldn't oppose this court's own motion to certify the question to the California Supreme Court to see if that's what they actually meant or if

[00:27:12] Speaker 04:
They did intend to say that it only involves the landowner.

[00:27:16] Speaker 04:
Only the landowner can assert the defense if their chattels fall under the property of somebody else.

[00:27:22] Speaker 04:
and cause damage to somebody else.

[00:27:24] Speaker 04:
That's not the kind of thing we were trying to protect.

[00:27:26] Speaker 00:
Well, another way to look at this would be at the moment that Eric Klein is stepping on the fence, which under California law is the real property of the United States.

[00:27:36] Speaker 00:
She is on the real property of the United States.

[00:27:40] Speaker 00:
And that would be entirely consistent with Klein.

[00:27:43] Speaker 04:
And again, because Klein used the words on land, that's why we're here, Your Honor.

[00:27:48] Speaker 00:
So you're saying land means land, not real property?

[00:27:51] Speaker 04:
Exactly.

[00:27:52] Speaker 04:
I have eight seconds left.

[00:27:53] Speaker 04:
Can I briefly address the equitable tolling argument in the event you find, I guess, the United States?

[00:27:59] Speaker 04:
There is no desire by the plaintiffs to have two cases being litigated in two different courts at the same time.

[00:28:08] Speaker 04:
The purpose of suing the federal government and federal court is because we can't be sued in state court.

[00:28:13] Speaker 04:
And obviously, if this court were to conclude that it had jurisdiction over the United States,

[00:28:18] Speaker 04:
and supplemental jurisdiction over the city, the litigation would shift to this forum.

[00:28:25] Speaker 04:
There's no desire to game the system or get one ruling somewhere else.

[00:28:30] Speaker 04:
At the end of the day, the reason this battle has been going on for four years is because the city has been pointing at the United States, who has been determined to not have jurisdiction.

[00:28:39] Speaker 04:
And therefore, our inquiries as to who owns the fence, how it got there, anything related to the negligence claims that may exist,

[00:28:48] Speaker 04:
we haven't been able to get.

[00:28:49] Speaker 04:
And it is for those reasons about the intent of the plaintiffs in bringing this in the first place.

[00:28:56] Speaker 04:
That's an equitable defense that requires some consideration of evidence.

[00:29:00] Speaker 04:
And a Rule 56 forum, we respectfully submit, would have been more appropriate than a 12b6.

[00:29:06] Speaker 04:
And language suggesting, in the district court's opinion, suggesting that this was done for an improper purpose or to game the system

[00:29:14] Speaker 04:
We respectfully disagree and ask this Court to fashion the appropriate remedy.

[00:29:20] Speaker 00:
Thank you for your time.