[00:00:00] Speaker 02: Thank you, Your Honor. [00:00:01] Speaker 02: May it please the court, Elliot Kahn for appellant and cross-appellee, Narciso Fuentes, and my co-counsel, Arthur Levy, is in the courtroom as well. [00:00:10] Speaker 02: In light of the cross-appeal, I'd like to reserve eight minutes for rebuttal. [00:00:15] Speaker 02: To address the state law issue first, from the onset of the case, Dish Network, [00:00:21] Speaker 02: has asked the court to treat the transaction as if a oral contract was formed on August 5th, 2015 during the phone call, and to apply the traveler's rule to determine the place of contracting. [00:00:35] Speaker 02: This has been over our objection, or our over opposition. [00:00:38] Speaker 02: It seemed very clear from the onset that no binding contract was formed until the DISH technician spent two to three hours at Fuentes' home [00:00:49] Speaker 02: and really wouldn't leave until he signed the contract in a language that he didn't understand. [00:00:54] Speaker 02: But the court gave Dish what they wanted. [00:00:57] Speaker 02: And the court summary judgment order rules on alternative grounds. [00:01:01] Speaker 02: It first accepts Dish's argument that an oral contract was made. [00:01:04] Speaker 02: And as Dish requested, they applied the Traveler's Rule. [00:01:07] Speaker 02: And just as any first year law student would find, the court found that after Dish's sales agent rattled off terms and conditions, [00:01:16] Speaker 02: and said, Mr. Fuentes, do you accept? [00:01:19] Speaker 02: And he uttered the words of acceptance, yes. [00:01:21] Speaker 02: Mr. Fuentes was the offeree, and per the Traveler's Rule, the contract was formed at his home, away from dishes, appropriate trade premises, and the Homeless Station Sales Act applies. [00:01:35] Speaker 02: Now, the court also ruled on the alternative grounds that, of course, when a contract was signed, Mr. Fuentes' home, it was away from appropriate trade premises, and the Homeless Station Sales Act applies. [00:01:46] Speaker 02: So for that reason, the court summary judgment order should be affirmed. [00:01:52] Speaker 02: Now onto the second issue, which is what are Article III courts to do once they cease to have Article III jurisdiction. [00:02:03] Speaker 02: It's important to keep in mind that our founding fathers have made our federal courts courts of limited jurisdiction. [00:02:08] Speaker 02: It's clear that not all claims can be heard in federal court, and so to effect the intent [00:02:14] Speaker 02: of the Constitution, Congress enacted 28 USC 1447, including subdivision C, which makes clear that once subject matter jurisdiction no longer exists, the case is to be remanded. [00:02:29] Speaker 04: This has been implemented through... But you're actually not asking for the case to be remanded because you're asking for judgment on [00:02:36] Speaker 04: part of the case, right? [00:02:37] Speaker 04: You're asking for part of the case to be remanded, which is to say, essentially, a claim or maybe a remedy. [00:02:42] Speaker 04: I know that's disputed. [00:02:44] Speaker 02: What we're asking is what remains of the case to be remanded. [00:02:48] Speaker 02: So by entering summary judgment, we only requested partial summary judgment on one of our claims, the court has adjudicated the individual aspect of the case. [00:02:57] Speaker 04: But how is this consistent with the statute which talks about the case being remanded? [00:03:02] Speaker 04: Usually when you think about the case, it means the whole case, not a part of the case. [00:03:07] Speaker 02: So first, the Lee case does cite dicta from the US court case in Schacht for the proposition that portions of the case can be remanded. [00:03:15] Speaker 02: And so I think partial remand is possible. [00:03:17] Speaker 02: But that's not what we have here. [00:03:20] Speaker 02: What we have is, it is the entire case. [00:03:23] Speaker 02: It's what remains of it. [00:03:24] Speaker 04: So what would have happened if at the beginning of this case, the district court had said, I'm just seeing right out of the gates here that there's no standing for this public injunctive. [00:03:36] Speaker 04: Let's call it claim. [00:03:37] Speaker 04: Yes. [00:03:38] Speaker 04: Could the district judge have then said, I'm now going to take that claim and send it back? [00:03:44] Speaker 04: Or does the district judge actually need to wait until the end and say, well, now every other claim is done. [00:03:51] Speaker 04: All that's left is this one claim. [00:03:53] Speaker 04: Now I'm sending it back. [00:03:54] Speaker 04: Do you see where I'm going with this? [00:03:56] Speaker 02: I understand. [00:03:56] Speaker 02: And as an initial matter, standing jurisprudence has been quite a wild ride since this case was filed. [00:04:03] Speaker 02: We filed a few months before the Spokio decision came down. [00:04:05] Speaker 02: And so what standing is met really has changed. [00:04:10] Speaker 02: I think there are two options the court could have done. [00:04:14] Speaker 02: One would have been to just hold the public injunctive relief claim in abeyance until resolution of everything that it has subject matter jurisdiction over. [00:04:22] Speaker 02: And I think there are court resources and policy reasons for that. [00:04:26] Speaker 02: And while the issue is not before the court, [00:04:30] Speaker 02: I think applying the dicta from Lee, the public injunctive relief claims could have been remanded. [00:04:39] Speaker 04: I guess I have a number of concerns with the ... Can I get him to clarify that? [00:04:44] Speaker 02: Sure. [00:04:44] Speaker 03: You said two things could happen. [00:04:46] Speaker 03: I think the second part was your ... The second one is applying the dicta from Lee. [00:04:52] Speaker 03: Just remanded at the beginning of the case. [00:04:53] Speaker 02: It could have been remanded. [00:04:55] Speaker 02: I think what was done here is probably better policy. [00:04:59] Speaker 02: I can serve judicial resources where we're allowing when the court understood his answer. [00:05:04] Speaker 02: Okay. [00:05:04] Speaker 02: Um, with, with, with what, what, how it played out and how standing chair's prudence has changed and evolved, uh, it did work out as such that allowed one court to resolve what it could without reaching these questions. [00:05:18] Speaker 02: Um, and, and now at the end, certainly once, once the court adjudicated individual liability, [00:05:26] Speaker 02: and certainly once the party stipulated to damages, while there was a portion of the claims that was still live or could be live in state court, there was nothing left that the district court had the power to adjudicate and remand what's appropriate. [00:05:43] Speaker 04: What case do you think [00:05:46] Speaker 04: or what cases would support doing this? [00:05:49] Speaker 02: Well, this is kind of exactly what happened in the Magadia versus Walmart case. [00:05:54] Speaker 02: In Magadia, the plaintiffs had filed a class action in a California state court alleging three violations of California's Private Attorney General Act of 2004. [00:06:05] Speaker 02: The trial court found Article III standing for two of the three claims, but ruled against the plaintiff, and found Article III standing for the third claim, [00:06:16] Speaker 02: yet found, sorry, no Article III standing for the third claim and still rule against the plaintiff. [00:06:23] Speaker 02: Now, while the analysis was obviously quite brief on appeal, what only happened was... Well, there essentially was no analysis. [00:06:29] Speaker 04: I mean, it seems that it happened. [00:06:31] Speaker 04: So you found an instance where it happened, but I struggled to see how that can be... Maybe it's informative to some extent that this is not totally unprecedented, but I don't see how it's binding. [00:06:43] Speaker 02: They do cite a plea for that proposition. [00:06:46] Speaker 02: And so our position would be that by adopting Lee's dict analysis, that that became a holding of the Ninth Circuit. [00:06:52] Speaker 01: So you want us to send back the remedy to state court, but what if the state court judge says, you know, this California statute is not meant to apply to this fact pattern based on legislative counsel's submittal at the time, so I disagree with what the federal court did and therefore we're not gonna do any public injunction. [00:07:18] Speaker 01: Would that be considered [00:07:21] Speaker 01: unfair? [00:07:21] Speaker 02: I don't think so. [00:07:23] Speaker 02: I mean, as an initial matter, we've now lost on the California Translation Act claim. [00:07:28] Speaker 02: That's done. [00:07:31] Speaker 02: The trial court has found, at least with Narciso Fuentes' individual circumstance, that the HSA, Homelessness Station Sales Act applied. [00:07:40] Speaker 02: That's obviously on appeal. [00:07:42] Speaker 02: I think once the Ninth Circuit were to affirm that, then that would become the law of the case. [00:07:48] Speaker 02: And if the trial court were to find that public injunction relief wasn't appropriate for some reason or other, that's for the California trial court to do. [00:07:59] Speaker 02: But it's certainly not a preordained conclusion at this point. [00:08:04] Speaker 02: And it's a matter of state law for the state court to determine. [00:08:10] Speaker 02: Ultimately, remand puts the parties back in the position that they would have been. [00:08:17] Speaker 02: We'd filed this case in state court. [00:08:19] Speaker 02: Had we filed the case in federal court, things might be different. [00:08:22] Speaker 02: But it's DISH that bears responsibility, who removed, that bears responsibility of the removal. [00:08:30] Speaker 02: And we should, and taking into account 1447C, the only appropriate [00:08:39] Speaker 02: uh... but what's required is to uh... remand what remains of the case. [00:08:43] Speaker 04: I saw that argument in the briefs. [00:08:44] Speaker 04: I was confused by it. [00:08:45] Speaker 04: I mean it seems that you could have pled the case in a way that tried to avoid CAF removal but you pled it in a way that subjected it to CAF removal which and then you filed it in state court which and we know what will happen next it was removed. [00:09:00] Speaker 04: So I don't really see how the plaintiff is sort of in a bad position. [00:09:04] Speaker 04: They could have done something differently than they did. [00:09:09] Speaker 04: It seems like what we're blaming here is Congress deciding that a case like this could be removed. [00:09:14] Speaker 02: The purpose of CAFA is not to foreclose viable state claims. [00:09:21] Speaker 04: Well, but the purpose of it is to bring it into federal court where we have standards like Article 3 standing that may be different than what another state court might have. [00:09:31] Speaker 02: Right, and what remains of the case, and I understand that there is case law saying, you know, even if we lose class certification, if we remove our CAFA, we stay there. [00:09:41] Speaker 02: What remains of the case is no longer a CAFA claim. [00:09:45] Speaker 02: It's purely one for public injunctive relief. [00:09:47] Speaker 02: We've lost on class certification. [00:09:49] Speaker 02: We appreciate that. [00:09:50] Speaker 02: We can't get private injunctive relief. [00:09:52] Speaker 02: We can't get, you know, equitable restitution to a group of people. [00:09:55] Speaker 02: All that we're seeking going forward [00:09:57] Speaker 02: is for DISH to change its business practices, which is a remedy that California has deemed appropriate under the unfair competition law. [00:10:05] Speaker 04: Right. [00:10:05] Speaker 04: I mean, I suppose Congress could have devised a system like this where some claims go back, and in fact they did in the context of supplemental jurisdiction have a similar scheme to what you're asking for where some claims essentially get broken off and sent back down. [00:10:19] Speaker 04: But here we're looking at a statute that's actually worded very differently. [00:10:23] Speaker 04: It doesn't talk about claims. [00:10:24] Speaker 04: It talks about the case. [00:10:25] Speaker 02: So the Polo case makes clear that 1447C does apply to CAFA. [00:10:32] Speaker 02: And so there certainly are already circumstances where something could be removed under CAFA and Article III jurisdiction could be lost. [00:10:40] Speaker 02: And the case at that point, say the entirety of the case, could be remanded. [00:10:47] Speaker 02: And so that is where we are now is there are claims that are still viable in state court or certainly were right before the court entered judgment that there was no Article III jurisdiction over. [00:11:03] Speaker 02: The Rogers versus Lyft case, I believe, cites a Supreme Court case, I believe it's called the City of Los Angeles v. Ellie, for the proposition that state courts are free to revise remedies and procedures that don't necessarily comply with Article III. [00:11:23] Speaker 02: And here... That's true. [00:11:26] Speaker 04: I mean, I don't know what that tells us, though, about what to read into 1447C. [00:11:32] Speaker 02: But the alternative, of course, is using the federal systems to foreclose adjudication of state claims that would be viable in state court. [00:11:48] Speaker 02: And that would be a gross overreach of the federal system. [00:11:51] Speaker 04: Well, I mean, but that happens, where a case goes up to federal court, and federal courts have federal procedures, and the procedures in federal court may cause somebody to not prevail, and they might have prevailed in state court under a different procedure. [00:12:06] Speaker 02: I understand, but we're unaware of any cases, or any appell cases, where under the basis of Article III standing, that viable cases, or claims to be viable in state court are foreclosed just because they're in federal court. [00:12:19] Speaker 02: And certainly had we not asked for this or had we originally filed the case in federal court, I think dismissal could be appropriate. [00:12:29] Speaker 02: But where we started in state court... Well, I mean, that would be the only appropriate thing. [00:12:33] Speaker 04: Of course. [00:12:34] Speaker 02: But where we started in state court, and it's not preordained that a state court would [00:12:42] Speaker 02: get rid of the remain claims, remand is appropriate to preserve the common between the federal and state court systems. [00:12:53] Speaker 04: You want to try to save some time for rebuttal? [00:12:54] Speaker 04: You're welcome to continue, but it's up to you. [00:12:58] Speaker 02: And so in conclusion, we request that the court direct the district court to remand the remainder of the case. [00:13:06] Speaker 02: Thank you. [00:13:07] Speaker 04: Thank you. [00:13:26] Speaker 00: Good morning. [00:13:28] Speaker 00: Richard Patch, Coblin's Patch Duffy and Bass for the Defendant, Appellee, and Cross Appellant Dish Network LLC. [00:13:36] Speaker 00: With the courts, subject to the court's views, I'd like to go first with the Home Solicitation Sales Act because, oddly, ruling on that would obviate the remand question and then turn to the remand question. [00:13:50] Speaker 00: I would like to reserve two minutes. [00:13:52] Speaker 00: On behalf of Dish, we requested the court reverse the district court's decision made in response to the motion for summary judgment by Mr. Fuentes, finding that the California Home Solicitation Sales Act applies to an oral agreement [00:14:11] Speaker 00: entered into over the telephone, initiated a call initiated by Mr. Fuentes to dish at its usual and appropriate trade premises. [00:14:24] Speaker 04: Let's assume you're right about this being about the phone call and not about when the technician came to the house. [00:14:30] Speaker 04: Why would we describe Mr. Fuentes as the offeror in this situation? [00:14:35] Speaker 04: Because he called? [00:14:37] Speaker 00: Yes, well, for actually two reasons. [00:14:40] Speaker 00: One, because he called. [00:14:41] Speaker 00: He initiated the call. [00:14:43] Speaker 00: And second, because to do otherwise would essentially to rewrite Restatement 26 that suggests any kind of public advertising makes the seller the offeror. [00:14:57] Speaker 00: And that's not the case. [00:14:58] Speaker 00: It's well recognized. [00:14:59] Speaker 00: That's not enough. [00:15:00] Speaker 00: That's not an offer that can be accepted. [00:15:02] Speaker 04: That may be right. [00:15:03] Speaker 04: But what about when on the phone, and this is not [00:15:07] Speaker 04: You know, this is like a package that Dish Network offers and it seems that when you read the description of what happened on the phone call, it was really Dish saying, well, do you accept these terms? [00:15:17] Speaker 04: How do you get around that? [00:15:19] Speaker 00: Well, first, I believe that a bright line test was intended by the legislature, as found by the legislative council, that when a person initiated the call to a business, they should be deemed the offeror. [00:15:33] Speaker 04: But the problem- Full stop, no matter what type of product we're talking about or service. [00:15:38] Speaker 00: I believe that as a proposition, when they initiate the call, they are the offeror. [00:15:46] Speaker 03: They're calling to say... Okay, so let me give you a quick... It seems to me that can't be right because, you know, I call and I say, hey, I want to buy your house for a dollar, right? [00:15:57] Speaker 03: And then they respond and say, no, we will sell your house for a million dollars. [00:16:03] Speaker 03: And I say, offer accepted. [00:16:06] Speaker 03: And you're saying, I'm the offeror. [00:16:07] Speaker 03: I mean, I was the offeror originally, but my offeror was rejected. [00:16:10] Speaker 03: They made a counteroffer. [00:16:11] Speaker 03: So now I'm the offeree, accepting their counteroffer. [00:16:14] Speaker 03: It seems, frankly, not absurd to have a cross-the-board rule that just because you make the phone call, you are the offeror. [00:16:26] Speaker 00: Well, I believe you're right. [00:16:29] Speaker 00: But what you suggested didn't happen here. [00:16:32] Speaker 00: And what did happen here. [00:16:32] Speaker 03: Well, actually, it is what happened, kind of. [00:16:34] Speaker 03: I mean, he calls and he says, hey, I want this special deal. [00:16:37] Speaker 03: And shockingly, a business like Dish says, you know, we don't do one-on-one deals. [00:16:42] Speaker 03: We do contracts of adhesion, right? [00:16:44] Speaker 03: That's what all these groups do. [00:16:45] Speaker 03: You know, if I want to get a Netflix. [00:16:47] Speaker 03: If I call up Netflix, I don't know how to call up Netflix. [00:16:50] Speaker 03: But I say, hey, you know, I'd like to have something where I get 3 quarters of your [00:16:55] Speaker 03: of your videos and I pay three quarters of the price. [00:17:00] Speaker 03: And if I was able to talk to a person on Netflix, they'd be like, no, you know, look on our website. [00:17:05] Speaker 03: You have the things you can sign up for. [00:17:07] Speaker 03: And so it just seems so far-fetched to think that in this sort of circumstance that we're all familiar with, which is where a company like Dish is providing, it says you can buy these one of X number of packages. [00:17:22] Speaker 03: that the person somehow ends up being the offeror. [00:17:25] Speaker 03: I understand that advertising those packages may not be an offer, because you might have to have some back and forth. [00:17:31] Speaker 03: But at the end of the day, it seems like at the end of the day, you will be the offeror buying that package. [00:17:37] Speaker 00: Your Honor, I respectfully disagree, because I don't think you're following the chain of actual conversation between the buyer and the seller. [00:17:46] Speaker 03: I want 12 months. [00:17:47] Speaker 03: No, we only do 24 months. [00:17:49] Speaker 00: Well, I accept. [00:17:50] Speaker 00: The offer that he received was 24 months in 1999 for this specific package. [00:17:55] Speaker 00: He calls up and he says, I would like to have that package. [00:18:00] Speaker 00: And then what happens is two things. [00:18:03] Speaker 00: One is you have to be clear, he needs to be clear what that package was. [00:18:08] Speaker 00: He says, well, can I get it for 12 months? [00:18:10] Speaker 00: No, the package was 24 months. [00:18:13] Speaker 00: Then this next thing that happens is that the company is required to make sure he understands [00:18:19] Speaker 00: what he is committing to when he says, I want to buy that and enter into a contract with you. [00:18:26] Speaker 00: So the process is to simply say, do you understand that when you offer to buy our services, these things are part of the deal? [00:18:35] Speaker 00: They aren't different from the deal. [00:18:37] Speaker 00: It's not a back and forth. [00:18:40] Speaker 00: This is just what the terms are. [00:18:42] Speaker 00: At the end of the conversation, they say, do you understand now that when you say, I want to buy that package, [00:18:49] Speaker 00: that you are going to be agreeing to these things. [00:18:52] Speaker 00: Person says yes. [00:18:54] Speaker 00: Dish then says, we agree. [00:18:56] Speaker 00: We agree to sell you the package and then acts on it. [00:18:59] Speaker 00: It starts by opening an account number. [00:19:02] Speaker 00: Then it schedules an installation where the person agrees to when that will happen. [00:19:07] Speaker 00: And as a part of that entire package, there is an explicit agreement. [00:19:11] Speaker 03: Do you think the last chain and where the actual acceptance happens when they say, he says, we agree, and then Dish says, now we agree? [00:19:21] Speaker 03: Except for the only thing about that is that it would never happen that he would say, no, I don't agree to that. [00:19:26] Speaker 03: And they should be like, that's fine. [00:19:30] Speaker 03: We're fine with your disagreement. [00:19:33] Speaker 03: Let's go forward with the deal. [00:19:34] Speaker 00: Well, two things. [00:19:35] Speaker 03: The last step, I mean, you're adding this, like, formalistic step that, like, does nothing to it. [00:19:40] Speaker 00: I think you're missing a step, Your Honor. [00:19:43] Speaker 00: What he was asked was not, do you agree to buy our product? [00:19:47] Speaker 00: What he was asked is, do you understand the terms that will apply? [00:19:52] Speaker 00: And he said, yes, I understand. [00:19:55] Speaker 00: He didn't say, yes, I agree to buy your product. [00:19:58] Speaker 00: He says, yes, I understand what you're saying the terms are. [00:20:02] Speaker 03: And why doesn't the agreement happen right then? [00:20:06] Speaker 00: Because Dish has not yet agreed to sell to him. [00:20:12] Speaker 00: That's the agreement. [00:20:13] Speaker 00: He wants to buy. [00:20:14] Speaker 00: Here are the terms. [00:20:16] Speaker 00: Do you understand the terms? [00:20:17] Speaker 03: So you're saying that in theory, the Dish person could be like, OK, I assume this is somebody on the phone, and they've got their little checklist. [00:20:24] Speaker 03: And they get to the end, and that's all I'm saying. [00:20:26] Speaker 03: And the person's like, you know what? [00:20:28] Speaker 03: I don't want to sell to you anyway. [00:20:31] Speaker 00: Well, actually, they do have to agree to sell. [00:20:33] Speaker 00: They do have to agree to set up an account. [00:20:36] Speaker 00: They do have to agree to schedule an installation so he has the equipment necessary to take the services. [00:20:41] Speaker 00: The company does have to agree. [00:20:43] Speaker 00: And actually, this happens over and over again. [00:20:47] Speaker 00: We don't have to focus just here. [00:20:48] Speaker 00: I think, broadly speaking, this rule is the rule. [00:20:52] Speaker 00: If you call a pizza parlor and say, I'd like to buy a pepperoni pizza, they say, well, the pepperoni pizzas are X. [00:21:00] Speaker 00: It's going to take us 25 minutes to deliver. [00:21:02] Speaker 00: Do you understand that? [00:21:03] Speaker 00: The person says, yes. [00:21:05] Speaker 00: I still want to order a pizza. [00:21:07] Speaker 00: The pizza place says, I agree. [00:21:09] Speaker 00: I'm going to send you the pizza. [00:21:11] Speaker 00: That's the same thing. [00:21:12] Speaker 00: You call up and ask somebody, will you come paint my house? [00:21:18] Speaker 00: I want you to come paint my house. [00:21:21] Speaker 03: I think your position is that the company [00:21:25] Speaker 03: in a telephone sales transaction, it doesn't even really seem like you're basing it on who made the phone call. [00:21:30] Speaker 03: You're just saying that the company is always the offeree. [00:21:34] Speaker 03: The company is always the last one to decide. [00:21:37] Speaker 00: Yeah, a couple things. [00:21:40] Speaker 00: I mean, one, if the person initiated the telephone call and came to the telephone call with a specific offer. [00:21:48] Speaker 03: Why does them initiating matter at all? [00:21:50] Speaker 03: It seems to me under your other way, it could be them calling, it could be the company calling, and they still would have to go through the whole checklist. [00:21:57] Speaker 03: I'm not sure why that, but let's just put that aside for a second. [00:21:59] Speaker 03: Am I not right that your position is that [00:22:03] Speaker 03: In this type of agreement, whether it's Netflix, whether it's dish, whatever, it's always the company that actually is the offering. [00:22:11] Speaker 03: That's that's your position. [00:22:13] Speaker 00: I believe two things. [00:22:15] Speaker 00: One is under the case of the home solicitation sales act. [00:22:20] Speaker 00: when they're trying to address the issues that are supposed to be the purpose of that act for whether there's sales pressure, et cetera. [00:22:29] Speaker 00: And given the legislative history where they said, we understand this hypothetical, which is when the person calls in [00:22:38] Speaker 00: And even though they're at home, are we going to treat it as if it's a home solicitation sale? [00:22:44] Speaker 00: And they say, basically, that in order to give merchants instructions on how to deal, how to know whether the act is going to apply or not, [00:22:55] Speaker 00: We're going to say that if the buyer initiates the call, we're not going to treat that as a home solicitation sale. [00:23:05] Speaker 00: Now, that's for the purpose of this statute. [00:23:08] Speaker 00: You can argue whether that rule should be universally or whatever, but for the purposes of the statute, because when the Legislative Council made that comment, [00:23:20] Speaker 00: They knew they referred to travelers and they said travelers is going to dictate where the contract was entered into by virtue of where it was accepted and where it was accepted as courses where the. [00:23:35] Speaker 00: where the offeree acts. [00:23:38] Speaker 00: So in this case, and solely for the purpose of determining whether the home solicitation sales act was going to apply, the legislative council, which was then presumably relied upon by the legislature, said we're going to treat in that circumstance the person initiating the call. [00:23:58] Speaker 03: What do you do with the fact that the actual hypothetical that you're referring to [00:24:02] Speaker 03: You know, it's a different type of circumstance than this what I would call a contract of adhesion, you know, the Netflix dish, et cetera, where they have certain programs and you can sign up for one of those programs. [00:24:16] Speaker 03: And yes, you have to do all these things to make sure they check all the boxes. [00:24:19] Speaker 03: But in the example they give, the homemaker telephones a seller at their place of business, and he instructs the seller to deliver the goods or services at a stated price. [00:24:32] Speaker 03: So that does sound more, I mean, and then it says, I think it goes on to say that the oral contract is made. [00:24:41] Speaker 03: That does sound like a situation where, I don't know, you're buying some unique type good and you call them and you say, hey, I want to buy this. [00:24:53] Speaker 03: Please deliver it to me at this price. [00:24:54] Speaker 03: Obviously, that's not, is that not kind of different than the circumstance here where [00:25:00] Speaker 03: He did call, and he didn't say, I want this price. [00:25:02] Speaker 03: He said, I didn't want 12 months. [00:25:03] Speaker 03: And Dishworth said, we don't do 12 months. [00:25:06] Speaker 00: Well, Dish offers us a selection of a menu of things. [00:25:10] Speaker 00: He called, and he said, I want that one. [00:25:13] Speaker 00: I want you to deliver that one to my house. [00:25:15] Speaker 00: That is precisely the example of the legislature. [00:25:18] Speaker 03: He said he wanted something. [00:25:19] Speaker 03: He didn't order off the menu. [00:25:20] Speaker 03: He tried to order off the menu. [00:25:23] Speaker 04: You can go ahead and respond. [00:25:24] Speaker 04: I did want to get your perspective before your time's out on the remand piece of this, too. [00:25:29] Speaker 00: Certainly, Your Honor. [00:25:31] Speaker 00: I believe that the court's order on the remand order was perfectly correct and should be upheld, and I ask you to do so. [00:25:38] Speaker 00: The district court correctly determined [00:25:41] Speaker 00: that it had fully adjudicated Mr. Fuente's individual UCL and CLRA claims, and then found that there was, quote, simply no unadjudicated claim to be remanded, whether it's a case or a claim. [00:25:57] Speaker 00: Neither exists in this case. [00:26:00] Speaker 04: Is that, I mean, recognize the district court said that. [00:26:02] Speaker 04: Is that actually correct in terms of what happened, that this was actually adjudicated when [00:26:07] Speaker 04: It's sort of undisputed that the plaintiff lacks standing as to this, I'll call it remedy. [00:26:13] Speaker 00: Well, therein lies the problem. [00:26:15] Speaker 00: It is our position, Your Honor, that there is no such thing as a cause of action for an injunction, whether it's under the UCL, CLRA, or in any other case, breach of contract. [00:26:26] Speaker 00: The California courts are clear. [00:26:29] Speaker 00: There is no separate claim for an injunction. [00:26:33] Speaker 00: What you have, and that's upheld in the Vaughan versus Tesla case very precisely in the context of the UCL, because there they were trying to divide the case between an individual's case and perhaps some kind of a representative case. [00:26:49] Speaker 00: And the court found specifically that doesn't happen, amongst other things, because that's against the rules for splitting claims, but more importantly because there simply isn't a difference. [00:27:01] Speaker 00: between some individual UCL claim and some representative claim. [00:27:06] Speaker 03: Given that, if it did get remanded, if this remedy was remanded, would you be subject to, would DISH Network be subject to some sort of preclusion in the state court because it's already been decided in the federal court? [00:27:20] Speaker 03: I'm trying to figure out how this would work other than the specific, like some of the ramifications of a rule that you could remand. [00:27:27] Speaker 03: Is that what would happen is you would be, since it's already been found [00:27:32] Speaker 03: by the federal court that the offer happened out his house, and he's been awarded that. [00:27:40] Speaker 03: Would it just be up to the state court to issue the public injunctive relief? [00:27:44] Speaker 03: Because the actual merits of the issue would already have been decided in federal court. [00:27:49] Speaker 00: I believe that's going to be a topic that the state court would have to grapple with, the scope of that. [00:27:55] Speaker 00: We would probably argue that the findings with respect to the federal court, that this was only Mr. Fuentes. [00:28:03] Speaker 00: They weren't commenting on any other telephone call or any other phone solicitation, just this. [00:28:10] Speaker 00: Is that even possible to base an injunction on? [00:28:14] Speaker 00: Are we bound by the finding that it was made at? [00:28:18] Speaker 03: at the home, and therefore some of the- Well, one of the reasons I'm asking that is, I mean, it could, in theory, work the other way, right? [00:28:22] Speaker 03: Like, I think, Judge Bresaster, colleague on our side, in theory, could you peel it off at the beginning? [00:28:28] Speaker 03: If you did that, and the state court raced and decided to public a conjunction claim before the federal court finished, if you can do that, so there's several questions, then would the federal court be bound by whatever the state court is, some sort of a preclusion? [00:28:46] Speaker 00: Your Honor, [00:28:47] Speaker 00: I think I have to start at square one. [00:28:49] Speaker 00: CAFA's original jurisdiction, so the pendant and ancillary jurisdiction cases allowing sort of breaking up the cases, just don't apply here. [00:28:58] Speaker 00: Second, you know, you can't break a UCL claim up into the claim for damages and the claim for an injunctive relief. [00:29:06] Speaker 00: There's just one claim there. [00:29:08] Speaker 00: And when that one claim is adjudicated, if they had tried, and perfect, I thank you for asking, because if they had actually tried to do that at the beginning, either by [00:29:18] Speaker 00: alleging two separate causes of action, one for damages and one for a remedy, in their original complaint. [00:29:25] Speaker 03: In state court. [00:29:26] Speaker 00: In state court. [00:29:27] Speaker 00: So when it got there, they say, well, you don't have jurisdiction over this claim, therefore we remand it. [00:29:34] Speaker 00: That would have been a clear, obvious example of illegally splitting a claim. [00:29:41] Speaker 00: That's why the claim splitting rules apply here and not the claim preclusion rules, which are advanced. [00:29:48] Speaker 00: But Mr. Fuentes, because that's the hypothetical they're basically asking you to assume. [00:29:54] Speaker 00: We had the right to present this as two different claims from the start. [00:30:00] Speaker 00: And we could have then asked for this case to be remanded as a separate claim. [00:30:05] Speaker 00: But that case would have been dismissed. [00:30:09] Speaker 00: There is no such thing as a claim for injunctive relief. [00:30:13] Speaker 00: It is either the UCL claim or it's no claim at all. [00:30:17] Speaker 00: And so you can't do that. [00:30:19] Speaker 00: You can't split these claims. [00:30:21] Speaker 00: Now, you know, the [00:30:23] Speaker 00: The intriguing arguments that's been made with regard to the Lee footnote in the Magdea, is that how you say that, case remand, ordering remand, don't apply here because whatever the ruminations are in those cases about the possibility of some case where there was CAFA jurisdiction or other full original jurisdiction, it gets resolved. [00:30:48] Speaker 00: There's a claim left should under 1447C [00:30:52] Speaker 00: Should the court be allowed to remand that case? [00:30:57] Speaker 00: I don't know the answer to that. [00:30:58] Speaker 00: What I do know is this is not the case, because there is no residual claim here. [00:31:04] Speaker 00: The claim was adjudicated. [00:31:05] Speaker 00: A judgment has now been entered on his UCLA and CLRA claims. [00:31:14] Speaker 00: The claims are over. [00:31:15] Speaker 00: What claim does he have? [00:31:18] Speaker 00: What primary right? [00:31:21] Speaker 00: gives him the ability to ask for injunctive relief. [00:31:25] Speaker 00: It was the fact that under the UCL, his right had been violated. [00:31:31] Speaker 00: That has been resolved. [00:31:33] Speaker 00: There is nothing to remand here. [00:31:36] Speaker 00: And all that intrigue about what might happen one day if there were such a case simply doesn't apply here. [00:31:45] Speaker 04: You want to save your remaining time for rebuttal? [00:31:47] Speaker 04: Yes, thank you. [00:31:48] Speaker 04: Thank you, Mr. Patch. [00:31:58] Speaker 02: Thank you, Your Honor, to hopefully very briefly address the state law claim. [00:32:04] Speaker 02: Your Honor, nailed it right in the head. [00:32:05] Speaker 02: This is an adhesion contract. [00:32:08] Speaker 02: Mr. Fuentes did not propose adhesion terms. [00:32:11] Speaker 02: Dish proposed what they even called offers. [00:32:13] Speaker 02: He accepted if any binding contract was formed over the phone. [00:32:18] Speaker 02: Dish was the offeror. [00:32:19] Speaker 02: Fuentes was the offeree. [00:32:24] Speaker 02: I'd like to correct one point I made in my opening argument in response to the question of what should happen if this issue was caught and standing jurisprudence had been staticked. [00:32:39] Speaker 02: Federal courts have an unflagging obligation to adjudicate the claims before them. [00:32:44] Speaker 02: The federal court should not remand until it's exhausted jurisdiction. [00:32:48] Speaker 02: So while it happened as such here, we follow the procedure that should be done. [00:32:54] Speaker 04: was it just make sure understand you're you're saying we you believe should happen in a situation like this is that any remand should take place at the end yes and where you getting that from uh... the uh... [00:33:07] Speaker 02: And I apologize. [00:33:08] Speaker 04: I mean, it seems sensible that if this remand were even possible, that it would not happen in the middle of the case. [00:33:14] Speaker 04: But I guess I'm wondering, what is your source for that? [00:33:18] Speaker 02: There is case law for the authority that the federal courts have an unflagging obligation to adjudicate claims. [00:33:24] Speaker 04: Right, but this is not a claim that is within the court's jurisdiction. [00:33:28] Speaker 04: So I don't see what the unflagging obligation has to do with the timing of the remand. [00:33:33] Speaker 02: Just in the sense that the claim before the court [00:33:37] Speaker 02: related to jurisdiction, it should exhaust the jurisdiction that it has. [00:33:41] Speaker 04: I mean, it seems like a prudential type argument. [00:33:43] Speaker 04: I'm not sure what source of authority you're locating this in other than some reasoned common sense. [00:33:51] Speaker 02: On the fly, I don't have a case for that. [00:33:55] Speaker 03: Can I ask you the question I asked your colleague about? [00:33:57] Speaker 03: Sure. [00:33:57] Speaker 03: So what happens if a court was to say, yes, you remand this claim slash remedy, whatever it is. [00:34:05] Speaker 03: If we did that, in state court, I assume your argument would be there's a form of preclusion that would raise you to [00:34:14] Speaker 03: so that what the federal court has already decided about the fact that there's been a violation here should be carried over into this case or should control this case and then all we're really, I'm not sure what all the factors are that the California court would look at, but whatever was left over they would decide and then in theory you would [00:34:30] Speaker 03: get an injunction, but is your view that much of the work would have already been done in the federal case that would control? [00:34:37] Speaker 02: We still have some work to do. [00:34:39] Speaker 02: We asked the trial court judge to make a finding that as the dishes practices the— The state trial court judge? [00:34:46] Speaker 02: I'm sorry, the district court judge. [00:34:48] Speaker 02: Uh, to make a finding as to just practices in our motion for partial summary judgment. [00:34:52] Speaker 02: Um, he declined to do so and limited his analysis to, uh, uh, Mr. Fletcher's transaction. [00:34:58] Speaker 02: Um, so we, it's not a situation where it's or we got you. [00:35:01] Speaker 02: It's just an issue of what the remedy is. [00:35:04] Speaker 03: So you would need the state court to do more deciding of what just networks like general practices in order to get a public injunction that would enjoin that general practice? [00:35:15] Speaker 02: Yes, whether that's by further motion practice or simply by a bench trial. [00:35:19] Speaker 04: I'll tell you what's kind of concerning about your position on the remand is just from my experience with civil litigation is that we don't have traditionally this, if what you're asking for is correct, every federal case that's removed would have basically a new proceeding at the end where the judge takes stock of all the claims that were dismissed for lack of jurisdiction, which there can often be many. [00:35:41] Speaker 04: No standing, it's moot, it's not ripe, whatever the case. [00:35:45] Speaker 04: And the judge then says, all right, now I got to go back in time to remember all these claims that used to be in the case. [00:35:49] Speaker 04: We're now going to have everybody come together and remind me, what are those claims I dismissed? [00:35:55] Speaker 04: Now I'm sending those back to state court. [00:35:56] Speaker 04: That's just not a proceeding or a procedure I'm at all familiar with. [00:36:00] Speaker 02: Well, here, while 1447C does suggest a sort of suicide to remand, we did affirmably ask for the remand. [00:36:09] Speaker 04: No, I know. [00:36:09] Speaker 04: But if what you're saying is right, this would be happening all over the place. [00:36:12] Speaker 04: And we would have all kinds of splinter litigation where things are going back to state court upon CAFA removal. [00:36:18] Speaker 04: It's very common when you have a CAFA removal for some of the claims not to be able to go forward in federal court due to the strictures of Article III. [00:36:26] Speaker 04: It's just very odd to me that if this was something that is allowed, why it wouldn't be happening all over the place. [00:36:33] Speaker 02: So what we're asking is very narrow and specific to Article 3 standing. [00:36:37] Speaker 02: And I think that the problem is anything short of this would require the court to adjudicate in some form the claims, which it doesn't have jurisdiction over. [00:36:47] Speaker 04: Well, you adjudicate them by dismissing them. [00:36:49] Speaker 02: Which I think to some extent is a merits determination. [00:36:52] Speaker 04: Well, it's not a merits determination. [00:36:54] Speaker 04: That's the whole point. [00:36:55] Speaker 04: It's the same. [00:36:56] Speaker 04: We don't have jurisdiction to decide the claim. [00:36:57] Speaker 04: The claim is dismissed. [00:36:59] Speaker 02: And then in this instance, remand would be preferable to dismissal because we very well, even with dismissal, may be able to go back and refile at state court only to be removed again. [00:37:11] Speaker 02: And that would create sort of the jurisdictional ping pong that CAFA was designed to avoid. [00:37:17] Speaker 02: So here where we've specifically asked for remand on the basis of Article 3 jurisdiction, the only appropriate remedy is to remand what remained of the case at the time we asked for it. [00:37:31] Speaker 02: I think it's also important to keep in mind that, as I stressed, standing jurisprudence has changed substantially since we filed the case with the Davidson [00:37:44] Speaker 02: versus Kimberly Clark decision, and then TransUnion, there is now a remedy by remedy standing requirement, which wasn't necessarily there before. [00:37:54] Speaker 02: So your Honor's earlier point of, well, could we have pled the case differently? [00:37:57] Speaker 02: I think when we pled it, when we pled it, we did believe we could get public injunction relief in federal court. [00:38:03] Speaker 02: That has now changed, certainly by no fault of our own. [00:38:08] Speaker 02: And where we originally filed in state court, [00:38:12] Speaker 02: The appropriate procedure, now that there is notice to be that there's an Article III jurisdiction over what remained of the case the instant before judgment was entered, the appropriate procedure would be to remand here. [00:38:26] Speaker 02: It just was done in Magogia. [00:38:33] Speaker 03: Thank you. [00:38:34] Speaker 03: Let me ask one in your view. [00:38:36] Speaker 03: So did I understand your argument correctly? [00:38:40] Speaker 03: You were acknowledging, I don't know if there's a disagreement, that you are effectively asking for a remedy to be remanded. [00:38:49] Speaker 03: I think sometimes you refer to it as a claim, but there is part of that claim that was decided by the federal court. [00:38:59] Speaker 03: I understand your arguments about claim splitting and why they don't apply here, but you are asking for part of a claim to be remanded. [00:39:05] Speaker 02: We're asking what remains of the two of the claims to be remanded. [00:39:10] Speaker 02: And I think it's important to note that under the unfair competition law, there is no claim. [00:39:14] Speaker 03: And then your argument is that that's OK under the statute because you're asking the entire case to be remanded because you want what's left of the entire case to be remanded. [00:39:24] Speaker 03: Exactly, Your Honor. [00:39:26] Speaker 04: All right. [00:39:26] Speaker 04: Thank you, Mr. Cohen. [00:39:28] Speaker 04: Mr. Patch? [00:39:29] Speaker 03: Thank you, Your Honor. [00:39:33] Speaker 00: Thank you. [00:39:34] Speaker 00: On the home solicitation sales act, I just want to tie it off. [00:39:39] Speaker 00: I understand the court's views, but I would point out that this was a defect in the statute, in our opinion, and everything in the statute contemplated a written contract. [00:39:49] Speaker 00: The notice had to be right next to the signature. [00:39:52] Speaker 00: The statute just didn't speak to it. [00:39:57] Speaker 00: The legislative council identified that and they said what happens when you have an oral contract over the phone, which is a common place. [00:40:05] Speaker 00: It is the way businesses do business now. [00:40:08] Speaker 00: How are we going to tell them whether it applies or not? [00:40:11] Speaker 00: We're going to tell them it applies. [00:40:13] Speaker 00: It does not apply if the customer calls you. [00:40:16] Speaker 00: Weatherall specifically discussed this and said, we find in that case, we're not going to apply that rule, but we're not going to say what the right rule is. [00:40:25] Speaker 00: But this court decided it. [00:40:27] Speaker 00: I ask you, Denovo, to look at it again and find that [00:40:31] Speaker 00: The only thing that makes any sense in modern commercial transactions is they have a bright line distinction. [00:40:38] Speaker 00: You can't go into every phone call, decide, well, did they say no? [00:40:43] Speaker 00: Was it a counter offer? [00:40:44] Speaker 00: Was it this? [00:40:45] Speaker 00: That those are not going to apply because they're not at the home and nothing about the transaction [00:40:51] Speaker 00: implicates the purposes of the act, which is to avoid the kind of pressure that happens in home sales. [00:40:59] Speaker 00: It doesn't apply to this telephone conversation. [00:41:02] Speaker 00: On the issue of remand, I would like to say a couple quick things. [00:41:05] Speaker 00: One, under Hodges, the pleading and plaintiff's case does not satisfy the request for a public conjunctive relief, he says, for people similarly situated. [00:41:17] Speaker 00: He didn't plead a public injunctive relief claim to survive. [00:41:23] Speaker 00: Second, he's self-excluded. [00:41:25] Speaker 00: At the beginning of the case, he said, I might sign up again for DISH if they change their practices. [00:41:32] Speaker 00: And then in the declaration in support of the remand motion, he self-selects out and says, I will never sign up for DISH again. [00:41:41] Speaker 00: Therefore, I don't have standing to ask the federal court for this relief. [00:41:46] Speaker 00: Third, and most importantly, the plaintiffs and the plaintiff's counsel are the masters of their own destiny with respect to these issues. [00:41:54] Speaker 00: It is a matter of pleading that they can elect and they can guide their cases in any way they want. [00:42:01] Speaker 00: If they want to bring a state court claim for a class action, [00:42:04] Speaker 00: and seek public injunctive relief, then they have to know that CAFA may apply and they have to separately allege standing for public injunctive relief, which means they have to specifically say what Mr. Fuentes decided not to say, which is, I do want to do this. [00:42:22] Speaker 00: I am protecting the people as a whole because I'm one of them. [00:42:26] Speaker 00: He could easily do it. [00:42:27] Speaker 00: Secondly, if they don't, if they don't want to, then they can simply file on state court [00:42:33] Speaker 00: and don't ask for the class, or if they do, ask for it on a California-specific basis, or some other reason that defeats CAFA jurisdiction, make their public conjunctive claim, and away they go. [00:42:46] Speaker 00: But what they can't do is what the plaintiffs have done here. [00:42:50] Speaker 00: They can't do a very broad claim against DISH, seeking class action relief for hundreds of millions of dollars or whatever, [00:42:59] Speaker 00: and then lose the class claim, then go ahead and adjudicate the UCLRA claims, and then say, now that we lost broad relief in the federal court, we want a second chance to do it in state court. [00:43:19] Speaker 04: I think we have your argument, Mr. Patch. [00:43:21] Speaker 04: I want to thank you for your presentation, thank Mr. Cohn for his presentation. [00:43:25] Speaker 04: This matter is submitted. [00:43:27] Speaker 04: The court will stand in recess until tomorrow morning.