[00:00:07] Speaker 02:
Good morning and may it please the court.

[00:00:10] Speaker 02:
My name is Minouche Candel with the ACLU Foundation of Southern California on behalf of Appalans, Oma's Angels Foundation, and Tien Chi Bui.

[00:00:19] Speaker 02:
I would like to save two minutes for rebuttal.

[00:00:23] Speaker 02:
Appellants seek an opportunity to litigate their claims involving fundamental rights under the California Constitution.

[00:00:30] Speaker 02:
Vital claims involving the freedom of movement and equal protection cannot be relegated to a grievance process that lacks the due process protections provided in state litigation when those claims were never part of the lawsuit or settlement which appellees seek to force upon the plaintiffs in the Utsman case.

[00:00:50] Speaker 02:
Appellants seek a reversal of the district court order that prevents them from seeking injunctive relief in state court.

[00:00:58] Speaker 02:
The district court exceeded its jurisdiction in six distinct ways, and anyone- Well, just a second.

[00:01:03] Speaker 00:
I thought the litigation in state court was proceeding.

[00:01:07] Speaker 02:
The litigation in state court is only proceeding as to damages, Your Honor.

[00:01:11] Speaker 02:
The injunctive and declaratory relief portions of the claims have been stayed pending the resolution of this appeal.

[00:01:18] Speaker 05:
So counsel, procedurally, that

[00:01:21] Speaker 05:
I have some difficulty understanding procedurally how this case has been separated.

[00:01:29] Speaker 05:
Generally, when a case is removed to federal court, the entire case is removed.

[00:01:34] Speaker 05:
The federal court decides the federal questions and then decides whether to exercise supplemental jurisdiction over the state issues.

[00:01:44] Speaker 05:
But it appears that's not what happened in this case.

[00:01:47] Speaker 05:
Only a portion of the case was removed.

[00:01:50] Speaker 02:
Well, what what is complicated about this case your honor is that there was never even an actual motion for removal.

[00:01:56] Speaker 02:
Instead, the county asked the state court to stay the state action which the state court did.

[00:02:04] Speaker 02:
requested or required that the plaintiffs use this dispute resolution process, which had been set up through a settlement in the federal case.

[00:02:14] Speaker 02:
That's very unusual.

[00:02:15] Speaker 02:
It is very unusual, Your Honor.

[00:02:17] Speaker 02:
And so the plaintiffs were essentially dragged into federal court without any jurisdiction.

[00:02:22] Speaker 02:
And as we note, there were six jurisdictional errors that the court made.

[00:02:27] Speaker 02:
in taking jurisdiction over the injunctive claims, starting with the lack of federal jurisdiction over the Ootsman state claims.

[00:02:35] Speaker 02:
So a district court can only remove a state court case to federal court when there is some original basis for federal jurisdiction.

[00:02:42] Speaker 05:
But there was no removal here.

[00:02:43] Speaker 05:
There was never any removal.

[00:02:45] Speaker 05:
You said there was never a motion to remove.

[00:02:48] Speaker 02:
There was never a motion to remove, but in practice, it acted as removal because the district court made an order saying it was taking jurisdiction over the injunctive and declaratory relief.

[00:02:59] Speaker 05:
So the district court, Sue Esponte, removed the case from state court to federal court?

[00:03:03] Speaker 02:
In effect, it did because the plaintiffs

[00:03:09] Speaker 02:
filed a grievance and went through the dispute resolution process, but all the time objecting that the court did not have jurisdiction over their claims.

[00:03:17] Speaker 02:
And at a hearing as part of that dispute resolution process, the district court issued an order that said, I am taking jurisdiction over all injunctive and declaratory relief claims in the Utsman case.

[00:03:32] Speaker 00:
And well,

[00:03:34] Speaker 00:
Assuming you are right that the district court should not have assumed a jurisdiction over the case.

[00:03:42] Speaker 00:
Why is this not a classic interlocutory situation?

[00:03:47] Speaker 00:
Many times, parties will say, for whatever reason, you don't have jurisdiction, District Court.

[00:03:56] Speaker 00:
And if you want that decided on an expedited basis before there's a final judgment, you have to file a 1292B motion.

[00:04:05] Speaker 00:
To me, this sounds very interlocutory.

[00:04:08] Speaker 02:
The reason that this is a final, appealable order, Your Honor, is for two reasons.

[00:04:12] Speaker 02:
One, it is a post-judgment order.

[00:04:14] Speaker 02:
So there's already a settlement in the case that occurred in 2019.

[00:04:20] Speaker 02:
And so there's no possibility for the Ootsman plaintiffs to litigate their issues in the federal case, because litigation has closed.

[00:04:29] Speaker 02:
There's a judgment.

[00:04:30] Speaker 02:
And there's lots of case law that says a post-judgment order is an appealable order.

[00:04:36] Speaker 05:
But is that true as to your clients?

[00:04:41] Speaker 02:
in the order that Judge Carter made because it's a final order in that one, it sends them out of court.

[00:04:48] Speaker 02:
It prevents them from litigating in state court because they can't pursue their injunctive claims there.

[00:04:52] Speaker 02:
And they can't litigate in the federal case because litigation has closed.

[00:04:56] Speaker 02:
It's also an appealable final order because it's a post-judgment order interpreting or enforcing a settlement agreement.

[00:05:03] Speaker 02:
And this court has found in several cases that post-judgment orders

[00:05:06] Speaker 00:
interpreting enforcement settlement agreements are final appealable orders but there is what is the order that the district court said interpreting the settlement agreement at this point the district court as I understand it has just said these claims may be covered by the Catholic work Catholic worker settlement and I think it's pretty clear that all of your individual clients are part of the Catholic worker class

[00:05:32] Speaker 00:
And so I don't know that the district court said that it's going to do anything at this point, other than adjudicate whether there should be some relief.

[00:05:44] Speaker 02:
Well, the court's order to take jurisdiction is the problem, Your Honor, because it cuts off the ability of plaintiffs to actually litigate their case.

[00:05:52] Speaker 02:
to have the protections that come with being able to do discovery, to follow evidentiary rules, a right to a jury.

[00:05:59] Speaker 02:
All that is cut off, because they can't do that in the state case, and they can't do that in the federal case.

[00:06:03] Speaker 05:
But what if they're covered by the settlement?

[00:06:05] Speaker 05:
Do they have the right to a litigated state court if they are, in fact, covered by the settlement?

[00:06:11] Speaker 05:
The individuals.

[00:06:12] Speaker 05:
We won't talk about the agency yet, but the individuals.

[00:06:15] Speaker 02:
So we do not believe they are covered by the settlement, because the settlement

[00:06:22] Speaker 02:
first of all, only covered issues that were related to the Catholic worker case.

[00:06:28] Speaker 02:
There's not an identical factual predicate.

[00:06:31] Speaker 02:
The Catholic worker case dealt with claims of people who were unhoused, who were being criminalized for living outside when there wasn't adequate shelter or housing, and the failure of shelters to accommodate persons with disabilities.

[00:06:45] Speaker 02:
In contrast, the Utsman case dealt with claims of people living inside shelters and challenged a number of policies and practices, including the lock-in policy, a discriminatory policy that segregates unhoused people from their community and prevents them from literally walking in or out of the shelter, prevents them from being on the sidewalk within a mile of the shelter, and forces them to use a bus, a shuttle, or a car to access or egress the shelter

[00:07:15] Speaker 02:
Otherwise, they can be evicted from the shelter.

[00:07:18] Speaker 02:
And beyond the dignitary and stigmatizing harms that that policy causes, it caused actual concrete harms to the plaintiffs in the Utsman case.

[00:07:26] Speaker 06:
So for example, Wendy- But doesn't that policy just arise directly out of the obligation to provide shelter in the first place that was covered by the settlement agreement?

[00:07:35] Speaker 02:
But that doesn't mean that the county can never be sued for new policies that it enacts.

[00:07:40] Speaker 02:
So that Frank case is very on point here.

[00:07:43] Speaker 02:
In Frank, flight attendants at United Airlines sued United Airlines for a wait policy, and there was a settlement.

[00:07:54] Speaker 02:
This court found that that settlement could not preclude a subsequent lawsuit brought by flight attendants for conduct that occurred after the settlement and that was a new policy.

[00:08:03] Speaker 02:
And that's exactly what happened here.

[00:08:05] Speaker 02:
The plaintiffs and ootsmen are suing for conduct that happened after the settlement.

[00:08:10] Speaker 02:
Six of the plaintiffs lives in shelters that enforce the lock-in policy.

[00:08:14] Speaker 02:
after the date of the settlement.

[00:08:16] Speaker 02:
Mr. Bowie, as recently as 2022, lived in a shelter that was enforcing the policy three years after the settlement.

[00:08:23] Speaker 02:
And the court in Frank was very clear that a settlement cannot preclude conduct that happens after the date of the settlement.

[00:08:30] Speaker 02:
And that's what happened here.

[00:08:32] Speaker 02:
So the settlement and Catholic worker is not a permanent get out of jail free card that immunizes Orange County from any future litigation involving the rights of unhoused people.

[00:08:43] Speaker 02:
in the county.

[00:08:44] Speaker 02:
The settlement can cover what was covered in the lawsuits, the Catholic worker lawsuits, but it cannot prevent people from ever suing the county for future actions that the county takes regarding the rights of unhoused people in the county.

[00:08:58] Speaker 00:
One of the problems that it seems to me is the fact that you talk about the lock-in policy not being covered by the settlement, but it appears that that's only one of many, many

[00:09:09] Speaker 00:
allegations and complaints you have about the housing situation, some of which would appear to be clearly covered by the settlement.

[00:09:17] Speaker 02:
Well, again, we don't think it's covered by the settlement for a number of reasons.

[00:09:21] Speaker 00:
I'm going to move to the notice issue here, because I think that's a very- I think that's definitely something the district court ought to have the first crack at.

[00:09:27] Speaker 00:
We don't even know what the notice was.

[00:09:30] Speaker 02:
Well, there was no notice, Your Honor.

[00:09:32] Speaker 02:
That's very clear from the record that the court approved the class on the same date

[00:09:39] Speaker 02:
that it approved the settlement.

[00:09:41] Speaker 02:
So there was no possible way there could have been notice to the class, because the class was not even identified until the same date when the court approved and finalized the settlement.

[00:09:51] Speaker 02:
So the court completely ignored the requirements of the rules of federal procedure, which say that any time you are approving a settlement for injunctive relief in a class action,

[00:10:02] Speaker 02:
you must provide notice to the class.

[00:10:05] Speaker 02:
These are fundamental due process protections because the settlement binds an entire class of people.

[00:10:11] Speaker 02:
They're entitled to notice, and they have an opportunity to object.

[00:10:15] Speaker 02:
And the court in Martinez interpreted the federal rules of civil procedure to require that notice.

[00:10:22] Speaker 02:
In Martinez, the court refused to approve a settlement

[00:10:26] Speaker 02:
when there had not been notice to the class, and this court has found when there are due process violations, the result of that is that the settlement cannot preclude a subsequent claim by class members who are not provided notice.

[00:10:44] Speaker 02:
So for example, in the Hecht case, the court found that when an absent class member had not been provided

[00:10:52] Speaker 02:
notice of a settlement they could not be precluded from bringing a subsequent claim.

[00:11:05] Speaker 02:
Returning to the lack of federal jurisdiction, I think the Syngenta case is really on point here because that court made very, very clear that a federal court cannot remove a state court to federal case if it did not have original jurisdiction.

[00:11:23] Speaker 02:
And in this case, in the Utsman case, there were no federal claims.

[00:11:28] Speaker 02:
There was no diversity of parties.

[00:11:30] Speaker 02:
And in Syngenta, the court found that even when there was a settlement in a federal case that required a party to dismiss a state court case, and that party continued with the state court case, the federal court did not have jurisdiction to remove that state court case to federal court in order to affect its own judgment when there was no original jurisdiction.

[00:11:51] Speaker 02:
So again, in this case, there was no original jurisdiction for the federal court to take up the Utsman claims.

[00:12:01] Speaker 02:
Also important to note that the settlement made very clear that the dispute resolution was voluntary.

[00:12:12] Speaker 02:
It only applies to homeless individuals who consent at the time of requesting the dispute resolution process to be bound by that process.

[00:12:22] Speaker 02:
and the ootsman plaintiffs did not consent to that process and yet appellees and the district court have tried to force the ootsman plaintiffs to use this process also when you look at the settlement agreement and you look at the claims that were released they only deal with

[00:12:40] Speaker 02:
claims detailed in the lawsuit, which the lock-in policy was not, relating to the availability of homeless shelters, the county's obligation to fund shelters, or the sheriff department ability to enforce county ordinances.

[00:12:53] Speaker 02:
And again, the Ootsman claims are not covered by any of these releases.

[00:12:59] Speaker 02:
I think I'd like to reserve the rest of my time unless the court has any questions.

[00:13:02] Speaker 02:
Thank you.

[00:13:17] Speaker 01:
Good morning, Your Honors.

[00:13:18] Speaker 01:
May I please the court?

[00:13:20] Speaker 01:
Gona Zandi at Deputy County Council.

[00:13:23] Speaker 01:
I'll be representing County of Orange along with my co-counsel supervising Deputy County Council, Ms.

[00:13:29] Speaker 01:
Knapp.

[00:13:30] Speaker 01:
I will be addressing this court's lack of jurisdiction to hear this appeal along with a very small remarks as to the consent decree retained jurisdiction

[00:13:43] Speaker 01:
by the district court and the fact that it has not been lapped, Ms.

[00:13:47] Speaker 01:
Knapp will be addressing district court's jurisdiction's notion of comity and notice of class.

[00:13:54] Speaker 01:
There is nothing before this court that provides this court with jurisdiction to hear this case.

[00:13:59] Speaker 01:
I think this court had realized that procedurally this case is a little bit complex and it's not your usual removal and remand matter.

[00:14:10] Speaker 01:
District court did not remove this case.

[00:14:12] Speaker 01:
District court did not take over this case, but rather this originated in state court.

[00:14:21] Speaker 05:
That's the difficulty for me, procedurally, that it was a state court case that ended up in the federal court.

[00:14:27] Speaker 05:
There are mechanisms to do that.

[00:14:30] Speaker 05:
And the primary one is removal.

[00:14:33] Speaker 05:
And so I have some difficulty saying this case was moved to federal court

[00:14:39] Speaker 05:
but there was no motion to remove the case.

[00:14:42] Speaker 05:
So under what vehicle did this case go from state court to federal court?

[00:14:48] Speaker 01:
Your Honor, the Superior Court of Orange County, in its minute order on August 11, 2021, indicated that it's exercising its discretion under state law to stay the action and actually ordered the Ouzman plaintiffs, two of which are appellants in this matter, to use the Catholic worker settlement.

[00:15:11] Speaker 05:
So what case allows a state court

[00:15:17] Speaker 05:
to remove part of its case to federal court.

[00:15:23] Speaker 05:
I'm not aware of any procedural mechanism that would allow a state court to remove a state proceeding to federal court.

[00:15:32] Speaker 01:
Your Honor, the Superior Court referenced two cases that allow it to exercise its discretion to actually state a procedure.

[00:15:44] Speaker 01:
And it sent the matter.

[00:15:45] Speaker 05:
There is no problem with the state court staying its procedure.

[00:15:49] Speaker 05:
The procedural conundrum is how can the state court

[00:15:55] Speaker 05:
then move the case to the federal court.

[00:15:57] Speaker 05:
There is no federal rule that allows that.

[00:16:00] Speaker 05:
I'm not aware of a federal case that allows that.

[00:16:02] Speaker 05:
So how can that be proper?

[00:16:04] Speaker 01:
And I think, Your Honor, that would be one of the basis that we are actually asserting that this court does not have jurisdiction to hear the case, because the state's superior court's ruling should be appealed.

[00:16:16] Speaker 01:
That is where appellants should go.

[00:16:19] Speaker 06:
But the district court held that all injunctive and declaratory relief claims

[00:16:24] Speaker 06:
had to be pursued in compliance with the agreement.

[00:16:27] Speaker 06:
It said that it was accepting jurisdiction.

[00:16:30] Speaker 06:
The district court made an order.

[00:16:33] Speaker 06:
What are we to make of that?

[00:16:35] Speaker 06:
I share Judge Rawlinson's question.

[00:16:36] Speaker 06:
I really don't understand procedurally.

[00:16:40] Speaker 06:
how the district court decided it could make that order when there was no motion.

[00:16:45] Speaker 01:
Well, at this time, Your Honor, I agree that district court made that order, but the issue, the crux of the issue is that the state court ruling should be appealed so that basically the state court, the state superior court

[00:16:58] Speaker 01:
state the matter, and basically said that I will stay this proceeding because I believe that federal court is more equipped to hear this because of the familiarity between the parties, the claims, and for judicial economy, and the fact that this global settlement agreement encompasses similar issues and similar matters.

[00:17:18] Speaker 01:
I'm going to actually send that over the objection of the plaintiffs.

[00:17:21] Speaker 01:
But that's the problem.

[00:17:22] Speaker 05:
The state court doesn't have

[00:17:26] Speaker 05:
the authority to send a case to federal court.

[00:17:29] Speaker 05:
The parties have the mechanism to remove a case to federal court, but a state court does not have authority to send a case to federal court.

[00:17:43] Speaker 05:
That's where I'm having some difficulty procedurally with even getting to

[00:17:48] Speaker 05:
the issue of what the federal court did because I just can't see how procedurally the case was properly in federal court.

[00:17:56] Speaker 01:
And I think we agree that that is the reason that we are saying that the state court of ruling should have been appealed and we are in the wrong court.

[00:18:05] Speaker 01:
And other reasons that we are in the wrong, we are, this court lacks jurisdiction.

[00:18:09] Speaker 05:
Were you in the wrong court before the district court?

[00:18:13] Speaker 01:
Well, for the appellant purposes, what's before this court today is that we believe that the court doesn't get to review this district court's ruling just yet until the state court is being appealed.

[00:18:27] Speaker 06:
But if the case never should have been in district court in the first place, why wouldn't we review that question?

[00:18:35] Speaker 01:
Even your honor reviewing it right now would not undo what the state court did which is exercises stay and What is the document before before a district judge?

[00:18:48] Speaker 00:
takes action There has to be something before him or her.

[00:18:53] Speaker 00:
What is the document that said to judge Carter?

[00:18:57] Speaker 00:
We need to do something.

[00:18:58] Speaker 00:
Did you file a motion?

[00:18:59] Speaker 00:
Was it something that I mean what what got filed in the state in the US District Court?

[00:19:04] Speaker ?:
I

[00:19:04] Speaker 01:
Your Honor, on top of my head, I'm not aware of anything except for the minute order.

[00:19:11] Speaker 01:
And subsequently, I believe there were letters that were filed with basically small briefs about some of the issues, such as signage and whatnot.

[00:19:22] Speaker 01:
But I do not recall exactly the process that was brought before the court.

[00:19:29] Speaker 05:
I would- So you're saying the minute order from the state court is what

[00:19:35] Speaker 01:
I think it initiated everything, but I do not recall on top of my head exactly.

[00:19:40] Speaker 01:
I would like to briefly also address that there is no final order before this court.

[00:19:45] Speaker 01:
The court simply accepted jurisdiction at this time, and it did not finalize a litigation.

[00:19:51] Speaker 01:
Not all post judgments are appealable.

[00:19:54] Speaker 01:
There are post judgments that are appealable because the probability of filing an appeal will be precluded.

[00:20:00] Speaker 01:
Subject matter jurisdiction is something that always can be brought

[00:20:03] Speaker 06:
But isn't this an order sort of enforcing a settlement agreement, which we have found is a final order that's appealable?

[00:20:10] Speaker 01:
Your Honor, we believe it's not.

[00:20:13] Speaker 01:
It's just that we are, the court said, district court said, I'm going to accept jurisdiction when you bring your claims in front of me.

[00:20:21] Speaker 01:
And that has not been brought.

[00:20:22] Speaker 01:
No injunction has been filed, especially on the policy that has been misrepresented at the lock-in, lock-out, which is a good neighbor policy.

[00:20:30] Speaker 01:
We have issues with the characterization, but that's not before the court.

[00:20:34] Speaker 01:
It was never briefed in the district court.

[00:20:36] Speaker 01:
It was never briefed in state court, despite months and months of having the ability to do so.

[00:20:41] Speaker 01:
And that's why the case is not even ripe to be before the court at this time.

[00:20:45] Speaker 01:
And subject matter is not of an interest that will be lost once there is an actual judgment.

[00:20:51] Speaker 01:
And finally, we would like to say that it's not an interrogatory order that was certified to be able to, it is an interrogatory order, but was not properly certified to be before the court.

[00:21:04] Speaker 01:
If there was a request for them to review it as an interrogatory order, they should have gone through the 1292 and certified it, which it has not happened.

[00:21:14] Speaker 05:
Counsel, if this is not a case enforcing the settlement agreement,

[00:21:17] Speaker 05:
That's the only basis for the federal court to have assumed jurisdiction, was to enforce the settlement agreement against these plaintiffs.

[00:21:24] Speaker 05:
What other basis would the district court have to have assumed jurisdiction?

[00:21:29] Speaker 01:
Your Honor, right now what's before the court is just that the district court's saying, when the state court abandoned that jurisdiction and said, go to federal court, now they have a day in court that says, I'm going to hear your cases.

[00:21:42] Speaker 01:
But nothing has been brought in front of them.

[00:21:43] Speaker 05:
Of course, with the settlement agreement.

[00:21:44] Speaker 05:
It's not hearing the case.

[00:21:46] Speaker 05:
as a new case, it's hearing it in conjunction with this ability to enforce the settlement agreement.

[00:21:53] Speaker 01:
Yes, Your Honor, but hasn't enforced it yet because there is no case or controversy that was briefed in front of it.

[00:22:01] Speaker 01:
All right.

[00:22:01] Speaker 05:
Thank you, Counsel.

[00:22:11] Speaker 03:
Good morning, Your Honor's Lauren Knapp, supervising deputy also on behalf of the county.

[00:22:15] Speaker 03:
I'm here to address the issues of ancillary jurisdiction, notice and the concept of comedy.

[00:22:20] Speaker 03:
It's our contention that Judge Carter properly accepted jurisdiction over the injunction claims with regard to the Utsman and Oma's appeal in the present case because of the two-part test set forth in the case of Kokomon.

[00:22:37] Speaker 03:
Although the concept of supplemental jurisdiction is codified in the section 1392 or 1367,

[00:22:48] Speaker 03:
The two-part test still exists in common law, and the two-part test essentially states, A, whether the claim that the federal court is attempting to accept jurisdiction over has interdependent facts with the current case.

[00:23:01] Speaker 05:
Well, counsel, first, we have to get it into federal court properly before we apply that test.

[00:23:08] Speaker 05:
So that was the difficulty I was having, how it got from state court to federal court.

[00:23:15] Speaker 05:
if for a federal court to exercise supplemental or ancillary jurisdiction, there first has to be a federal claim that's brought before the court.

[00:23:25] Speaker 05:
And it's brought either in an original complaint, or it's removed from state court to the federal court.

[00:23:33] Speaker 05:
And generally, when a case is removed from state court, the entire case is removed, not part of the case.

[00:23:38] Speaker 05:
So that's the difficulty I'm having with the whole

[00:23:43] Speaker 05:
supplemental jurisdiction or ancillary jurisdiction argument, you first have to have primary jurisdiction.

[00:23:49] Speaker 05:
And that's what I see as missing in this case.

[00:23:52] Speaker 03:
I understand, Your Honor.

[00:23:53] Speaker 03:
I think we contend that Judge Carter had primary jurisdiction over the Catholic worker case.

[00:24:00] Speaker 03:
And because of that primary jurisdiction, that enabled Judge Carter to accept, once it was sent from the state court, the injunctive relief claims from the Utsman plaintiffs.

[00:24:10] Speaker 05:
What authority

[00:24:11] Speaker 05:
authorizes a state court to send a case to federal court?

[00:24:16] Speaker 05:
What rule or case authorizes a state court to do that?

[00:24:22] Speaker 03:
That's a very good question, Your Honor.

[00:24:24] Speaker 03:
And as stated in our brief, the state court made this decision following a plea of abatement.

[00:24:31] Speaker 03:
They moved for plea and abatement.

[00:24:33] Speaker 03:
That's what the county moved for.

[00:24:35] Speaker 03:
And that motion was denied.

[00:24:38] Speaker 03:
And then the state court

[00:24:39] Speaker 03:
found that because of the similarities of the claims, the injunctive portion of the case should be sent to Judge Carter.

[00:24:46] Speaker 03:
At least in so far as the dispute resolution procedure.

[00:24:49] Speaker 03:
Go through the dispute resolution procedure.

[00:24:52] Speaker 03:
That was the order of Judge Nakamura.

[00:24:54] Speaker 03:
And following up on what my co-counsel said, that should be appealed to state court.

[00:24:59] Speaker 03:
That is a state court question.

[00:25:00] Speaker 03:
That is not properly before this court.

[00:25:01] Speaker 05:
Well, it's a jurisdiction question for us, whether or not the federal court had jurisdiction.

[00:25:07] Speaker 05:
at the time it assumed the authority over this case?

[00:25:12] Speaker 03:
Well, Judge Carter accepted jurisdiction of the injunction claims when they were sent to him from Judge Nakamura.

[00:25:18] Speaker 03:
It's our contention that Judge Nakamura's ruling, if petitioners are not happy with that, they should appeal that through the state court appellate process.

[00:25:26] Speaker 03:
With regard to Judge Carter, he was sent this case

[00:25:29] Speaker 03:
He looks at the facts and it's our contention he found that ancillary jurisdiction or if the court doesn't agree with our ancillary argument in just the basic concept of comedy, the court should accept jurisdiction because the facts.

[00:25:43] Speaker 06:
Why can't we review that decision?

[00:25:47] Speaker 06:
I mean, why isn't that our

[00:25:49] Speaker 06:
our job to look at Judge Carter's decision to say, I have jurisdiction over this case.

[00:25:55] Speaker 06:
I mean, sure, maybe there can also be a state appeal, but I'm not understanding why a federal appeal isn't also appropriate.

[00:26:04] Speaker 03:
Well, there's two steps here.

[00:26:05] Speaker 03:
The first step was Judge Nakamura's ruling, which sent it immediately to Judge Carter.

[00:26:10] Speaker 03:
There's also been no effort.

[00:26:11] Speaker 05:
It's problematic, though, because you haven't given me a federal rule or a case that allows a state court

[00:26:19] Speaker 05:
to refer a case to federal court.

[00:26:22] Speaker 05:
I mean, if that were true, then state courts could refer all kinds of matters to federal court, and we could have dual cases.

[00:26:31] Speaker 05:
I just can't contemplate that that can be right, that a state court can just sua sponte say, I'm sending this to federal court.

[00:26:40] Speaker 03:
Well, and Judge Carter was not asked to make that decision.

[00:26:42] Speaker 03:
That decision was made before Judge Carter got the case.

[00:26:46] Speaker 03:
that decision was made by the state court and should be appealed in the state court.

[00:26:50] Speaker 06:
But that's not right, because Judge Carter's decision says this court accepts jurisdiction.

[00:26:54] Speaker 06:
So that's a decision.

[00:26:57] Speaker 06:
That's not saying this case was foisted upon me.

[00:26:59] Speaker 06:
That's saying I'm determining that this court is taking it.

[00:27:02] Speaker 03:
There's also been no effort from petitioners to send the case back to state court.

[00:27:06] Speaker 03:
There are mechanisms to do that.

[00:27:09] Speaker 03:
If you don't like that the case has been removed, they can file to send it.

[00:27:11] Speaker 05:
It wasn't removed.

[00:27:13] Speaker 05:
I'm sorry?

[00:27:13] Speaker 05:
The case was not removed.

[00:27:15] Speaker 05:
That would have been a whole different process if the case had been removed.

[00:27:18] Speaker 05:
It was not removed.

[00:27:19] Speaker 03:
That's correct, Your Honor.

[00:27:20] Speaker 05:
The state court, Sue Esponte, sent it.

[00:27:23] Speaker 05:
So the removal proceedings are not at issue here.

[00:27:27] Speaker 05:
It's a whole different procedural conundrum that we have to determine whether or not it legitimately gave jurisdiction to the federal court.

[00:27:38] Speaker 05:
And I have some real concerns about that.

[00:27:41] Speaker 03:
Your Honor, I would turn then to the concept outside of the ancillary jurisdiction cases, which state that a court can take original jurisdiction over a state court matter if it meets that two-part test, we contend it does.

[00:27:54] Speaker 03:
Petitioners' entire claims are based on items that are included within the Catholic worker settlement, the Catholic worker standards of care all involve

[00:28:03] Speaker 03:
the ideas of how we run our shelters, how the county approaches caring for the homeless in the shelters, the shelter conditions, everything from pest control to the number of beds, and in this case, their complete misstated allegations regarding the neighbor policy.

[00:28:24] Speaker 05:
Council, all of those cases are predicated on the federal court having primary jurisdiction and then deciding whether or not

[00:28:33] Speaker 05:
exercise ancillary jurisdiction over state court claims.

[00:28:37] Speaker 05:
So we can't just skip to ancillary claims without them being anchored to a federal claim.

[00:28:44] Speaker 05:
And that's the difficulty I'm having with your argument.

[00:28:46] Speaker 05:
You're not anchoring it to a federal claim that was properly before the court.

[00:28:50] Speaker 03:
We're anchoring it to the Catholic worker case, which is still active and under the federal court's jurisdiction.

[00:28:55] Speaker 03:
It's not over.

[00:28:56] Speaker 03:
It's an active ongoing settlement.

[00:28:58] Speaker 03:
And the other thing I would point the court to is the concept of comity.

[00:29:01] Speaker 03:
which is that three-part test, which says same or similar facts.

[00:29:05] Speaker 03:
There's cases which have been heard, the Cone case, which has been heard before this court, which essentially said it doesn't have to be identical parties.

[00:29:12] Speaker 03:
And in this case, we would contend OMA's claims are similar enough that the court had the right to accept jurisdiction of the injunctive claims.

[00:29:19] Speaker 03:
the similarity of the parties, the similarity of the issues, as well as the chronology of the lawsuit, all fall within the realm in which the Catholic worker was decided.

[00:29:30] Speaker 00:
And finally, I want to ask a question.

[00:29:31] Speaker 00:
I think I understand what your argument to be, and you keep talking about ancillary jurisdiction.

[00:29:38] Speaker 00:
But if I understand your argument, it is that you had the Catholic worker settlement.

[00:29:46] Speaker 00:
Under the Catholic worker settlement, the district court retained jurisdiction over items that are included within the settlement.

[00:29:52] Speaker 03:
Correct.

[00:29:53] Speaker 00:
And that's how the district court would get jurisdiction over the individuals, right?

[00:29:57] Speaker 03:
Correct.

[00:29:58] Speaker 00:
Putting aside the notice issue.

[00:30:01] Speaker 00:
But Olmos Foundation was clearly not part of the settlement.

[00:30:06] Speaker 00:
So that's where you have to bring in the ancillary jurisdiction.

[00:30:12] Speaker 00:
Do I understand that to be your argument?

[00:30:14] Speaker 00:
Yes.

[00:30:14] Speaker 00:
That's how you get to ancillary jurisdiction.

[00:30:16] Speaker 00:
The primary jurisdiction is with the individuals?

[00:30:18] Speaker 03:
Yes.

[00:30:19] Speaker 00:
Under the settlement where jurisdiction is retained, ancillary is against almost because they are not part of the settlement.

[00:30:26] Speaker 03:
Correct.

[00:30:28] Speaker 03:
That's absolutely correct.

[00:30:29] Speaker 03:
And if the court would like me to address notice, I still have.

[00:30:32] Speaker 06:
Yeah, I would like you to just spend a minute or so addressing notice, because, I mean, that's another question I have, is how the court, how the settlement agreement would even bind these parties when there was no notice issued.

[00:30:46] Speaker 03:
Well, and it's our contention that notice was given.

[00:30:49] Speaker 03:
In our brief, we discuss the publications that were made.

[00:30:53] Speaker 03:
In addition to the publications, I think it's important to- But not by the court, right?

[00:30:58] Speaker 03:
I'm sorry?

[00:30:59] Speaker 03:
Publications by who?

[00:31:02] Speaker 03:
Yes, the settlement agreement was incorporated by reference, and the standards of care were incorporated by reference by the court in its final order with regard to notice.

[00:31:12] Speaker 03:
It is true that certification and notice of the settlement were done on the same day, which is allowed by code in the notes.

[00:31:18] Speaker 03:
It's 23E.

[00:31:18] Speaker 03:
It specifically allows for that to be done.

[00:31:21] Speaker 05:
If we're in the record, can we look to see where the notice of settlement was given to the parties?

[00:31:27] Speaker 03:
We're in the record.

[00:31:28] Speaker 03:
It's our contention that the notice of the grievance procedures and the Catholic Worker Council were ordered to be posted at the shelters.

[00:31:37] Speaker 03:
I can actually cite to the record where that is.

[00:31:39] Speaker 05:
Does that meet the notice requirements of the federal rules?

[00:31:45] Speaker 03:
No.

[00:31:47] Speaker 03:
The court has to review the notice of settlement by an abusive discretion standard.

[00:31:52] Speaker 03:
Judge, we would urge the court to remember that these were homeless individuals.

[00:31:57] Speaker 03:
It is not your Verizon case where everyone has a cell phone and an address where we can mail notice to.

[00:32:02] Speaker 03:
It's not that simple.

[00:32:03] Speaker 03:
It was a challenge.

[00:32:03] Speaker 05:
But they don't get less.

[00:32:04] Speaker 05:
They're not entitled to less notice because they're unhoused.

[00:32:07] Speaker 03:
Absolutely not.

[00:32:08] Speaker 03:
But notice was a challenge.

[00:32:10] Speaker 03:
And Judge Carter, and the main issue when evaluating the notice of settlement the cases have held is to confirm

[00:32:15] Speaker 03:
that there's no coercion going on, that there's adequacy of counsel.

[00:32:20] Speaker 03:
And this counsel, the Catholic.

[00:32:21] Speaker 05:
So it's that people who are bound by the settlement are aware that there is a settlement and what the terms of those settlements.

[00:32:28] Speaker 05:
that put the terms of that settlement consistent?

[00:32:31] Speaker 03:
Correct.

[00:32:32] Speaker 03:
Correct.

[00:32:33] Speaker 03:
And although notice of the certification and the settlement were given on the same day, it's our contention that Judge Carter made the finding that notice was proper, given the involvement, the extreme involvement of the Catholic worker case throughout the riverbed all the way through the years.

[00:32:48] Speaker 03:
I would also point out to the court that the settlement wasn't truly final until the standards of care were adopted, which was an entire year after the initial notice was approved.

[00:32:57] Speaker 03:
And no one came forward, no one has set forth, including the petitioners, to object to notice.

[00:33:03] Speaker 03:
We've received no motion to set aside the notice.

[00:33:07] Speaker 03:
This is not even the proper court or the proper forum to review the notice, because they have filed nothing to challenge the notice.

[00:33:14] Speaker 03:
This is not the original jurisdiction to challenge notice of a class.

[00:33:17] Speaker 03:
This case is unusual in a number of ways.

[00:33:20] Speaker 03:
I would agree with you, Your Honor.

[00:33:24] Speaker 05:
Thank you.

[00:33:24] Speaker 03:
Thank you very much.

[00:33:25] Speaker 03:
I'd like Catholic Worker Council to speak as well.

[00:33:38] Speaker 04:
Thank you, Your Honors.

[00:33:39] Speaker 04:
My name is Carol Sobel.

[00:33:40] Speaker 04:
I just want to address briefly what I believe is a jurisdictional matter for this Court.

[00:33:45] Speaker 04:
We do not believe that this appeal is timely under any of the rules and any of the language of Federal Rules of Civil Procedure IV.

[00:33:56] Speaker 04:
The time to file this appeal, they filed their motion for clarification in the District Court under Rule 60A.

[00:34:05] Speaker 04:
And Rule 60A is included within the list of exceptions to the 30-day rule of Federal Rules of Appellate Procedure 4A4A.

[00:34:17] Speaker 04:
There are only a limited number of ways you can avoid the 30-day limitation on filing an appeal.

[00:34:23] Speaker 05:
Counsel, what date are you saying that the time for appeal ran from?

[00:34:27] Speaker 05:
What order?

[00:34:28] Speaker 05:
of the court started the time for filing an appeal.

[00:34:32] Speaker 04:
We believe it ran from Judge Carter's original order on April 22nd and that the motion for clarification was, which was filed way outside of that time period that would have been invoked by

[00:34:45] Speaker 04:
the order on April 22nd, it was like four months later, that that does not start the clock running again.

[00:34:54] Speaker 04:
The clock ran from the original order.

[00:34:56] Speaker 05:
And the original order, the motion for clarification, was it resolved by Judge Carter?

[00:35:04] Speaker 05:
He denied it, but here's the key issue.

[00:35:07] Speaker 04:
Under the federal- Why wouldn't that start the time?

[00:35:10] Speaker 04:
Because under the Federal Rules of Appellate Procedure 4A4A6, it says you can get relief under a Rule 60 motion if that motion is filed within the time for filing a motion under Rule 59.

[00:35:26] Speaker 04:
The time for filing a motion under Rule 59 was 28 days.

[00:35:31] Speaker 05:
But Council, I thought a motion for clarification was one of those motions that it's not one of those motions that tells the time for filing an appeal.

[00:35:41] Speaker 04:
It is, but under the Federal Rules of Appellate Procedure, that motion had to be filed within the time to file a Rule 59 motion.

[00:35:51] Speaker 04:
That's the explicit language.

[00:35:53] Speaker 00:
So how many days was it?

[00:35:55] Speaker 00:
I thought it was 20.

[00:35:56] Speaker 00:
I thought they filed it on the 28th day.

[00:35:58] Speaker 04:
No, they filed the motion for clarification a few months after.

[00:36:04] Speaker 04:
It was much more than 28 days.

[00:36:07] Speaker 05:
OK, we'll have to take a look at that.

[00:36:09] Speaker 05:
We'll take that up with counsel.

[00:36:11] Speaker 04:
But I believe it is far more than the 28 days that would have been filed.

[00:36:16] Speaker 04:
And so it didn't extend the time.

[00:36:17] Speaker 04:
And as the county council has said,

[00:36:24] Speaker 04:
There was an option here, there was even an obligation, to challenge the actions of the state court when the state court made its original decision.

[00:36:34] Speaker 04:
And they have never done that.

[00:36:36] Speaker 04:
So there was a vehicle.

[00:36:37] Speaker 04:
That's not our issue.

[00:36:38] Speaker 04:
I understand that, Your Honors.

[00:36:39] Speaker 04:
But I think that the fact of failing to comply with federal rules of appellate procedure four

[00:36:48] Speaker 05:
Well, there's some of that on both sides.

[00:36:51] Speaker 05:
So, you know, the way this case got into federal court didn't comply.

[00:36:56] Speaker 05:
with the rules of federal procedure.

[00:36:58] Speaker 05:
So there's a lot of unusual facts in this case.

[00:37:03] Speaker 04:
I agree, Your Honor.

[00:37:04] Speaker 04:
But the initiation of this case to federal court was by the state court, which recognized this.

[00:37:10] Speaker 04:
This is a case that had a lot of litigation around this issue.

[00:37:15] Speaker 04:
And as this court is aware, from Martin and Grant's past, these are very contentious

[00:37:19] Speaker 04:
issues in communities.

[00:37:22] Speaker 04:
And this case was an effort, the Catholic Worker case, was an effort to get beyond the individual litigation and to set a new way of approaching these issues by saying that jurisdictions come under one judge and we don't have an instance of one city pushing people to the next city without there being some accountability.

[00:37:44] Speaker 05:
We understand that this was an innovative way to resolve the issues.

[00:37:49] Speaker 05:
but we still have some legal issues that we have to resolve.

[00:37:52] Speaker 05:
It was a commendable effort and very laudable, but we still have some legal issues.

[00:37:58] Speaker 05:
Thank you.

[00:37:59] Speaker 00:
Can I ask one quick question?

[00:38:01] Speaker 00:
Do you think, is it your position that the lock-in policy is covered by the settlement, that that's a term, a condition of

[00:38:09] Speaker 04:
Well, we don't consider this a lock-in policy, but we concede, we have dealt, let me just be really clear, we have dealt with issues that are within their description of the lock-in policy repeatedly under the settlement agreement.

[00:38:22] Speaker 04:
How do we get people out in the morning?

[00:38:24] Speaker 04:
How do we get people in at night?

[00:38:26] Speaker 04:
We have resolved some of those issues, to my knowledge,

[00:38:30] Speaker 04:
There is no lockout policy and has not been at least.

[00:38:34] Speaker 04:
Lock in or lock out?

[00:38:36] Speaker 04:
It isn't a lock in policy that I've seen.

[00:38:39] Speaker 04:
And we get the complaints.

[00:38:42] Speaker 04:
So the way this goes is it's our names posted in the shelters, and we get the calls all the time.

[00:38:48] Speaker 04:
And we probably have dozens of calls in a month.

[00:38:53] Speaker 04:
about people who challenge one thing or another.

[00:38:56] Speaker 04:
We have specifically dealt with some of these issues about how people get out, how people get in.

[00:39:01] Speaker 04:
For example, at Bridges, and I would note, Your Honors, that not only has the courtyard closed, one of the facilities that they sued about, but so has La Mesa, the Anaheim facility now.

[00:39:12] Speaker 04:
So we're really only talking about what happens at Bridges and under their litigation, because

[00:39:20] Speaker 04:
that things are closing and changing all the time.

[00:39:23] Speaker 04:
I don't think that that's the policy.

[00:39:27] Speaker 05:
And when we have had... That would be something that would have to be sorted out based on the facts.

[00:39:30] Speaker 04:
Absolutely.

[00:39:31] Speaker 05:
So we can't decide that, whether or not the policy exists.

[00:39:34] Speaker 04:
Absolutely.

[00:39:35] Speaker 04:
And as I said, we have dealt with claims that might arguably fall into that, and they have all been resolved.

[00:39:41] Speaker 04:
And it is an ongoing policy.

[00:39:43] Speaker 04:
It's a very fluid population.

[00:39:45] Speaker 04:
It's a very fluid staff at these facilities.

[00:39:49] Speaker 04:
an ongoing interaction.

[00:39:52] Speaker 04:
Thank you.

[00:39:53] Speaker 04:
All right.

[00:39:53] Speaker 04:
Thank you, counsel.

[00:39:54] Speaker 04:
Rebuttal?

[00:40:01] Speaker 02:
Just like to respond to some of the court's questions.

[00:40:05] Speaker 02:
So the reason the plaintiffs did not appeal the state court ruling on the stay was because it was not an appealable order.

[00:40:14] Speaker 02:
The district court has made an appealable order

[00:40:17] Speaker 02:
which is why we appeal the court's order.

[00:40:18] Speaker 02:
And to answer Judge Rollinson your question about how this got into federal court was that after the state court issued the granted the motion to stay that the county made the parties did file one very limited grievance request and asked the court for its assistance through the court's dispute resolution process and then to the plaintiff's surprise in the process of the court dealing with that

[00:40:46] Speaker 02:
dispute resolution process, the court issued this order that said it was taking jurisdiction over all injunctive and declaratory relief claims in the Utsman case, even though the dispute that was before the court was much, much narrower.

[00:41:03] Speaker 02:
And so then, confronted with that order, which was a final order, plaintiffs appealed that order.

[00:41:09] Speaker 05:
Could you address the

[00:41:12] Speaker 05:
issue of whether or not your appeal is timely?

[00:41:15] Speaker 02:
Yes.

[00:41:15] Speaker 02:
So I think counsel is talking about the rules for interlocutory appeals, and we are not doing an interlocutory appeal.

[00:41:22] Speaker 02:
We're appealing a final order.

[00:41:24] Speaker 02:
What order are you appealing?

[00:41:26] Speaker 02:
What's the date of the order?

[00:41:28] Speaker 02:
Well, we're appealing the date that the appeal runs from is the date when the motion to clarify was denied.

[00:41:37] Speaker 05:
And was the motion to clarify filed within 28 days of the order from which you're appealing?

[00:41:46] Speaker 02:
So the district court order was on May 4, and the motion for clarification was on May 31.

[00:41:58] Speaker 02:
So yes, the motion for clarification was timely.

[00:42:01] Speaker 02:
There was never an objection that the motion for clarification was not timely.

[00:42:05] Speaker 02:
And then the judge denied the motion for clarification on August 25, and appellants filed their notice of appeal on September 23.

[00:42:19] Speaker 05:
Is there anything else, counsel, to wrap up?

[00:42:24] Speaker 02:
I think everybody agrees this case should not be in federal court, and this court is the one that has the power to send- I don't think opposing counsel agrees with that.

[00:42:34] Speaker 02:
This court has the power to send it back to state court, and we ask that the court do so.

[00:42:42] Speaker 02:
Again, this case deals with really fundamental rights under the California Constitution, the freedom of movement, the right to equal protection against invidious discrimination, and lower court errors which affect constitutional rights are deemed structural and must be reversed.

[00:42:59] Speaker 05:
Council, what's your response to Council for Catholic Workers saying within the confines of the settlement agreement they address the policies

[00:43:07] Speaker 05:
the lock-in, lock-out policies that are being asserted by your clients?

[00:43:12] Speaker 02:
They may be addressing it for individual unhoused people, but we are representing people.

[00:43:19] Speaker 02:
We just filed an amended complaint with new plaintiffs who are currently living in a shelter that is currently enforcing the policy.

[00:43:25] Speaker 02:
And we brought our lawsuit because we're not interested in tinkering with the policy for one person.

[00:43:30] Speaker 02:
We think the policy is unlawful and should not be applied to anybody.

[00:43:34] Speaker 02:
And that is the purpose of our lawsuit.

[00:43:36] Speaker 02:
And that shows that the grievance process is not capable of making these global changes to a policy that the county is enforcing.

[00:43:43] Speaker 02:
It's only doing individual tinkering here and there while we're trying to get rid of the entire policy.

[00:43:48] Speaker 02:
And the state court case would give us an avenue to do that.

[00:43:52] Speaker 02:
All right, thank you, counsel.

[00:43:53] Speaker 05:
Thank you to all counsel for your helpful arguments in this challenging case.

[00:43:57] Speaker 05:
The case just argued is submitted for a decision by the court.

[00:44:00] Speaker 05:
We are in recess until 9.30 AM tomorrow morning.

[00:44:05] Speaker 01:
All rise.

[00:44:06] Speaker 01:
This court for this session stands adjourned.