[00:00:02] Speaker 04:
All right, we're ready to proceed.

[00:00:07] Speaker 02:
OK.

[00:00:08] Speaker 02:
Good morning, Your Honors.

[00:00:10] Speaker 02:
We're here today to discuss a case of a dismissal.

[00:00:13] Speaker 04:
You need to state your appearance for the record.

[00:00:15] Speaker 04:
Tell us who you are.

[00:00:16] Speaker 02:
I apologize.

[00:00:17] Speaker 02:
Kayleen Cosmo for the Appalachian.

[00:00:22] Speaker 02:
Raymond Valdez.

[00:00:27] Speaker 02:
OK.

[00:00:31] Speaker 02:
May I continue?

[00:00:32] Speaker 04:
Yes.

[00:00:33] Speaker 02:
OK.

[00:00:33] Speaker 02:
Great.

[00:00:34] Speaker 02:
Sorry.

[00:00:35] Speaker 02:
So we are here today to discuss the dismissal of my client's claim for wrongful death based on the statute of limitations.

[00:00:43] Speaker 02:
Counsel.

[00:00:45] Speaker 04:
Yes.

[00:00:45] Speaker 04:
Judge Wallach has a question for you.

[00:00:47] Speaker 01:
Do you agree that the record under the mailbox rule is clear that your client received those two notices in September

[00:00:59] Speaker 01:
I think September 29th of 2012, notifying her that the mortgage processing and reporting transfer notice and so on.

[00:01:10] Speaker 04:
Oh, we're on the wrong one.

[00:01:12] Speaker 04:
We're on Valdez versus United Airlines.

[00:01:17] Speaker 04:
Sorry, we'll get oriented, so we'll stop the clock.

[00:01:20] Speaker 00:
I apologize.

[00:01:20] Speaker 04:
Let's go back on the... I apologize.

[00:01:22] Speaker 04:
Let's kind of go back to the beginning, because we've had a... We're going to start over.

[00:01:27] Speaker 04:
I know who you are.

[00:01:28] Speaker 04:
Okay.

[00:01:29] Speaker 04:
And now I... I apologize.

[00:01:31] Speaker 04:
We want to get on... It's okay.

[00:01:33] Speaker 04:
We're all on the same case now.

[00:01:35] Speaker 04:
Yeah.

[00:01:35] Speaker 04:
So, okay.

[00:01:37] Speaker 04:
So, we'll give you two minutes to sort of get back into your introduction, and then we'll start the questions, okay?

[00:01:47] Speaker 02:
Thank you.

[00:01:47] Speaker 02:
So this case today is here based on a dismissal of my client's wrongful death claims based on the statute of limitations.

[00:01:57] Speaker 02:
Opposing counsel was successful in their motion to dismiss based on those claims because stating that the statute of limitations expired on October 20th, whereas the complaint was not filed until two years later on October 21st.

[00:02:15] Speaker 02:
It is clear from the record that the passing of the statute of limitations before the complaint was filed was based on a pure inadvertent mistake from prior counsel, I would like to note.

[00:02:28] Speaker 01:
I was not counsel at the time, but I am fully- Your firm was counsel, was it not?

[00:02:33] Speaker 02:
Yes.

[00:02:33] Speaker 02:
I am fully accompanied or acquainted with the record.

[00:02:37] Speaker 02:
It was not me in this situation.

[00:02:40] Speaker 04:
It doesn't matter, does it?

[00:02:42] Speaker 04:
From a legal standpoint?

[00:02:44] Speaker 04:
You're responsible, yeah.

[00:02:47] Speaker 02:
No, absolutely it doesn't.

[00:02:49] Speaker 02:
And I only say that to talk about the inadvertent mistake.

[00:02:52] Speaker 02:
So there are several inadvertent mistakes.

[00:02:54] Speaker 02:
One, prior counsel for my firm miscalculated the days of the year.

[00:03:00] Speaker 01:
Because there was a leap year, you say?

[00:03:02] Speaker 02:
Yes.

[00:03:03] Speaker 01:
But wouldn't that leap year have changed it the other way, not the way you're saying?

[00:03:09] Speaker 01:
It adds another day?

[00:03:13] Speaker 01:
doesn't help you.

[00:03:17] Speaker 02:
Yes, I will concede that point.

[00:03:18] Speaker 02:
And I will concede that their calculations were obviously that goes to the point that those were obviously a mistake that they had made.

[00:03:25] Speaker 02:
And in addition, I believe that they the prior counsel had in their mind of the discovery rule wherein this matter wasn't the causation of this matter, the injury that occurred on October 20th.

[00:03:36] Speaker 02:
was not known to my client as the cause of their parent, their mother's death, because they didn't have any idea that it was caused by this until they received the death certificate in December of that year.

[00:03:48] Speaker 02:
So even, you know, calculating the statute of limitations, I think in their mind- Is it in the record?

[00:03:56] Speaker 02:
Yes, it is, Your Honor.

[00:03:57] Speaker 02:
And I believe it was issued on October 28th, but my client did not get it until, I think because she died in a state that he did not live in in Texas, he did not get it until December.

[00:04:06] Speaker 02:
Additionally, there was an issue with the service company.

[00:04:15] Speaker 01:
You pro-offer an email from the service company, is that correct?

[00:04:19] Speaker 01:
And you rely on that?

[00:04:21] Speaker 02:
Yes.

[00:04:22] Speaker 01:
Is there any foundation whatsoever for that email?

[00:04:25] Speaker 02:
The foundation?

[00:04:27] Speaker 01:
Who sent it?

[00:04:28] Speaker 01:
When?

[00:04:28] Speaker 01:
What was the date on it?

[00:04:30] Speaker 01:
What was the time on it?

[00:04:33] Speaker 02:
I need to what this was it was since later and to confirm about the day that we had submitted it and Further the prior attorney not answering my question You need a foundation for evidence.

[00:04:47] Speaker 01:
Don't you?

[00:04:49] Speaker 02:
I'm going to speak to the foundation Which is that?

[00:04:54] Speaker 01:
I'm sorry do it now Speak to the foundation for that email

[00:04:59] Speaker 02:
Well, first of all, prior counsel Antonio Castillo declared that this was submitted.

[00:05:05] Speaker 02:
And in a declaration, as an officer of the court, the court must contake their declarations as true.

[00:05:12] Speaker 01:
Not to be kidding.

[00:05:15] Speaker 01:
What's your legal authority for that?

[00:05:22] Speaker 01:
Cite a case that says that we're required to take as true a declaration by counsel because they're an officer of the court.

[00:05:29] Speaker 02:
As an officer of the, well, in any motion to dismiss, Your Honor, the law states that any fact that is declared must be taken as true at that stage and not on the merits.

[00:05:39] Speaker 02:
This is just a procedural argument.

[00:05:41] Speaker 02:
At the pleading stage and these motions and at the motion stage, it must be taken, must be taken as.

[00:05:51] Speaker 01:
Yeah.

[00:05:51] Speaker 01:
It's a psych case law to me on this.

[00:05:53] Speaker 01:
I mean, this is mind boggling to me.

[00:05:58] Speaker 04:
Basically, you blew this by one day is what happened here, correct?

[00:06:07] Speaker 04:
And so at some point, you're asking the court to give you relief from that.

[00:06:17] Speaker 04:
Is that right?

[00:06:19] Speaker 02:
Well, I believe that the interest of justice would not serve my client based on it being dismissed on a less than 12 hour difference.

[00:06:29] Speaker 02:
It would be due by 1159 on October 20th.

[00:06:34] Speaker 02:
This was, quote unquote, filed by the court, even though it was submitted prior to that by October 21st at 1152, I believe.

[00:06:42] Speaker 02:
that I don't think that the interest of justice, it's an inadvertent mistake.

[00:06:46] Speaker 02:
And a 12-hour difference does not prejudice the other side.

[00:06:48] Speaker 02:
That is the whole purpose of a statute of limitations, is to avoid prejudice for the other side to be able to defend their case.

[00:06:56] Speaker 02:
And a 12-hour difference does not do that, especially when it was, you know- Half-year difference.

[00:07:02] Speaker 02:
I'm sorry?

[00:07:03] Speaker 01:
How about a two and a half year difference?

[00:07:05] Speaker 01:
Because there was a very long time between the service of this complaint

[00:07:12] Speaker 01:
and the alleged incident.

[00:07:16] Speaker 01:
So United is faced with having to start investigating when memories have dimmed.

[00:07:25] Speaker 02:
I understand that argument, Your Honor, but the argument that is at issue here is the dismissal for the statute of limitations.

[00:07:31] Speaker 02:
The time it took between now and motion practice and appeals to resolve the issue is not the intent of the statute of limitations.

[00:07:39] Speaker 01:
No, no.

[00:07:40] Speaker 01:
The argument here is 60B1.

[00:07:44] Speaker 02:
Right.

[00:07:44] Speaker 02:
And that is inadvertent mistake of

[00:07:48] Speaker 02:
calculating the statute of limitations.

[00:07:50] Speaker 02:
And by any measure, we can concede that this was due by October 20th, and it was filed within 12 hours of that date.

[00:07:58] Speaker 01:
How about your representation to the court that the service company allegedly made a mistake in not filing this in a timely fashion?

[00:08:11] Speaker 01:
That's based on that completely unsupported

[00:08:17] Speaker 01:
I'll call it, I'm putting in air quotes, email, which you received and which really doesn't say that.

[00:08:27] Speaker 02:
Well, Your Honor, I believe that the email does say that.

[00:08:29] Speaker 02:
It says that we submitted it to them for filing on October 20th.

[00:08:32] Speaker 02:
And as a licensed purveyor of these services for filing, they agreed to file it the same day.

[00:08:40] Speaker 02:
And that was our understanding of what had happened.

[00:08:43] Speaker 02:
And we didn't realize that mistake until

[00:08:45] Speaker 02:
Until the, really, until the motion for dismissal came about.

[00:08:49] Speaker 04:
So, you argued to the court that it was excusable.

[00:09:00] Speaker 02:
I argued that it was an inadvertent mistake.

[00:09:05] Speaker 04:
An inadvertent mistake.

[00:09:06] Speaker 04:
Did that argument ever change to excusable?

[00:09:14] Speaker 04:
No, my client is I don't believe so I think that it's always and the court didn't think it was inadvertent the court So you had to ask you threw yourself on the mercy of the court and the court found against you And what was the basis for that?

[00:09:30] Speaker 02:
The court found against my client based on the pioneer factors deciding excusable neglect, but the pioneer factors even in that case state that they do not apply to

[00:09:46] Speaker 02:
mistakes of fact, which is the issue here.

[00:09:49] Speaker 02:
One, the mistake of fact was the counting of the statute of limitations and also the idea that the delayed discovery rule, wherein even if we counted wrong on that day, we believe that the actual date, triggering date for the statute of limitations was in December,

[00:10:07] Speaker 02:
of that year when the client discovered that this actual wrongful death litigation or wrongful death claim was available to them.

[00:10:16] Speaker 02:
And I believe, you know, there's a strong federal policy to resolve the case issues on the merit rather than procedural.

[00:10:25] Speaker 04:
Why didn't you get and obtain a certified document or declaration from the LA Superior Court stating that the complaint was filed on October 20th rather than October 21st?

[00:10:37] Speaker 02:
I believe that that was not obtained simply because other arguments were persuasive to prior counsel.

[00:10:45] Speaker 02:
I can't, I don't know.

[00:10:47] Speaker 04:
Well, it wasn't, but it wasn't in the record, right?

[00:10:49] Speaker 04:
That's something you could have done and we can't put it there.

[00:10:54] Speaker 02:
You can see that point, Your Honor.

[00:10:55] Speaker 04:
Okay.

[00:10:56] Speaker 01:
You agree that the, you say that the death certificate was what alerted your client to the cause of action.

[00:11:06] Speaker 01:
Yes.

[00:11:06] Speaker 01:
What in the death certificate did that?

[00:11:08] Speaker 01:
Because it seems to indicate that she died with acute respiratory failure listed as an immediate cause of death and underlying causes listed as COVID pneumonia, multiple myeloma and bacteremia.

[00:11:24] Speaker 02:
Yes.

[00:11:25] Speaker 01:
How does that relate?

[00:11:27] Speaker 02:
The underlying cause of COVID is the issue at hand here.

[00:11:31] Speaker 02:
My client's mother did not have COVID before this fall where the airline dropped her while they were transporting her.

[00:11:38] Speaker 02:
She had to go into the hospital during the height of COVID to seek

[00:11:43] Speaker 02:
to seek care and during that time is when she contracted COVID and that contributed to her death clearly as stated in the death certificate.

[00:11:53] Speaker 02:
And he did not have any idea about that until he received the death certificate several months later.

[00:11:59] Speaker 03:
Okay, so this is Judge Schroeder.

[00:12:03] Speaker 03:
On the filing of the complaint, what is your theory in this appeal on why the 60B motion should have been granted briefly?

[00:12:13] Speaker 02:
I believe that the 60B motion should have been granted because there was an inadvertent mistake, one, about when the statute of limitations ran because of the delayed discovery rule, two, because of an inadvertent mistake about calculating even if the triggering date was the date of the incident, there was an inadvertent mistake in counting when that would be based on prior counsel.

[00:12:42] Speaker 03:
And are you blaming the court clerk as well?

[00:12:48] Speaker 02:
We're not placing blame here other than on the service company.

[00:12:53] Speaker 02:
So no, I'm not going to- The service company?

[00:12:55] Speaker 02:
Yes.

[00:12:56] Speaker 04:
So the appellees here have asked the court to award attorney's fees in this case.

[00:13:02] Speaker 04:
So let's assume just hypothetically right now, and I don't know what the court's going to do because we haven't conferenced on this, but let's assume you lose on getting relief here.

[00:13:13] Speaker 04:
They've asked for attorney's fees.

[00:13:16] Speaker 04:
What's your position on that?

[00:13:19] Speaker 04:
And if we get to that issue, why from your perspective should we not award them attorney's fees?

[00:13:26] Speaker 02:
I do not believe that attorney's fees should be awarded because this is a viable cause of action.

[00:13:32] Speaker 02:
It's not a frivolous matter as put forth in the complaint that this is being dragged on to be vexatious or harassing or anything of that sort.

[00:13:45] Speaker 02:
But that is not the case.

[00:13:46] Speaker 02:
My client very much believes in the cause of action and we very much believe that this should be going forward

[00:13:53] Speaker 02:
regardless of this inadvertent mistake.

[00:13:55] Speaker 04:
Right, so you blew it, okay, and you lose in the district court.

[00:14:00] Speaker 04:
I mean, this is when you call it, you know, if you had filed it any earlier, we wouldn't have had to be talking about this.

[00:14:06] Speaker 04:
But anyway, so when you go down to the, if you're running to the courthouse on the day that it's due or there's any number of things that go wrong, the court didn't buy your excuse, okay, so you lose there.

[00:14:17] Speaker 04:
So what, for them to get attorney's fees,

[00:14:21] Speaker 04:
And the first thing you do is you call your ENO carrier because you didn't file it within the statute of limitations.

[00:14:29] Speaker 04:
But what do they have to show to get attorney's fees here?

[00:14:32] Speaker 04:
You're saying, why isn't this frivolous?

[00:14:36] Speaker 04:
You tried it on the court.

[00:14:37] Speaker 04:
The court said, I'm not giving you relief.

[00:14:39] Speaker 04:
And then you go ahead and you say, well, I'm going to try again on the appellate court.

[00:14:47] Speaker 04:
Why isn't it frivolous after you've already, you know, you couldn't get equitable tolling.

[00:14:53] Speaker 04:
You couldn't get anyone to say, hey, it was excusable.

[00:14:57] Speaker 04:
It was inadvertent.

[00:14:58] Speaker 04:
You don't get relief.

[00:15:00] Speaker 04:
And the standard of review is going to be sort of deferential here.

[00:15:03] Speaker 04:
Why do you get to keep it going?

[00:15:06] Speaker 01:
And let me add on to the judge's question.

[00:15:08] Speaker 01:
And that is, why didn't you file a reply brief when the response raised this issue?

[00:15:16] Speaker 02:
I can't speak to the last question, Your Honor, but I will speak to the question about why this is not frivolous.

[00:15:25] Speaker 02:
One, the trial courts are not infallible.

[00:15:27] Speaker 02:
I mean, something like 20% of cases are overturned, and that's because people are not fallible.

[00:15:32] Speaker 02:
Decisions are made by judges, and we believe that their interpretation of the law of Rule 16B1 is inaccurate, and they got the law wrong on this, and we are seeking relief from this court to correct that error.

[00:15:45] Speaker 04:
Well, you're hoping that someone will feel sorry for you, essentially, basically, and are you relying on the Washington case as an example where this court took mercy?

[00:16:00] Speaker 02:
I'm not asking the court to take mercy or feel sorry for us.

[00:16:04] Speaker 02:
I think that there is an excusable and inadvertent mistake that happened here by a prior counsel on several instances.

[00:16:13] Speaker 02:
There are several mistakes that lined up to make this the case, and I don't think that the federal policy that this should be decided on the marriage should be forestalled based on a 12-hour mistake.

[00:16:23] Speaker 01:
Counsel, there is no prior counsel.

[00:16:26] Speaker 01:
You are counsel.

[00:16:28] Speaker 01:
Your firm is counsel.

[00:16:30] Speaker 01:
It's not prior counsel.

[00:16:32] Speaker 01:
And I want an answer, if you can, as to why no reply brief was filed.

[00:16:38] Speaker 01:
You can't say, I don't know.

[00:16:40] Speaker 01:
I mean, you're here representing your client.

[00:16:43] Speaker 02:
I understand, Your Honor.

[00:16:44] Speaker 02:
And I believe that we felt that our brief on its own stood for the points that we wanted to make with this court.

[00:16:55] Speaker 01:
OK.

[00:16:56] Speaker 04:
All right, your time's expired at this point, your total time.

[00:17:00] Speaker 04:
Do either of my colleagues have any additional questions?

[00:17:04] Speaker 04:
All right, I'll just give you a minute for rebuttal.

[00:17:08] Speaker 02:
Thank you.

[00:17:09] Speaker 04:
But we'll hear from the other side, your friend on the other side.

[00:17:17] Speaker 04:
Good morning.

[00:17:19] Speaker 00:
Good morning.

[00:17:20] Speaker 00:
May it please the court, Michael Cutler, counsel for Defendant Appellee United Airlines.

[00:17:28] Speaker 00:
Honorable judges, I'm trying to be very respectful of the time of this court.

[00:17:33] Speaker 00:
And not to repeat any of the arguments that we've made in our answering.

[00:17:37] Speaker 04:
It's your time.

[00:17:38] Speaker 00:
Of course.

[00:17:39] Speaker 00:
I will just say very respectfully that I think it's quite apparent at this stage

[00:17:45] Speaker 00:
just objectively speaking, that this half-hearted appeal should not have been filed in the first place.

[00:17:51] Speaker 00:
I think that our request for attorney's fees is- Are you seeking in the way of attorney's fees?

[00:17:56] Speaker 00:
I didn't see anything.

[00:17:59] Speaker 00:
So I apologize if we were supposed to submit an estimate or anything like that.

[00:18:03] Speaker 00:
I'm curious.

[00:18:03] Speaker 00:
But in my experience, it would be going back and looking at our- We would ask you for a statement.

[00:18:10] Speaker 00:
And a declaration.

[00:18:11] Speaker 01:
But how much is it?

[00:18:12] Speaker 00:
I do not have an estimate.

[00:18:14] Speaker 00:
And to the extent that we spent a little bit more time than needed, we would, of course, not submit the extra time.

[00:18:21] Speaker 00:
It would only be something commensurate with the exposure in this matter.

[00:18:25] Speaker 04:
Well, do you think the pioneer factors apply when evaluating any of the four enumerated bases in a rule 60B1, or is it just excusable neglect?

[00:18:36] Speaker 04:
What's your best case supporting your argument here?

[00:18:42] Speaker 00:
My reading of the case on this, which is really a mosaic of various cases, is that Rule 60B1, to begin with, is not a mechanism to get a second bite and an apple when you lose a motion to dismiss.

[00:18:56] Speaker 00:
And even if it was, then relief would not be proper here under the pioneer factors.

[00:19:01] Speaker 00:
That is sort of the analysis that I've learned as I research this issue.

[00:19:05] Speaker 04:
Well, okay, I'm having, I'm struggling with the frivolousness argument.

[00:19:14] Speaker 04:
We're talking one day.

[00:19:15] Speaker 04:
We're not talking, sometimes with a year of this, we're talking one day.

[00:19:20] Speaker 04:
Okay, they blew one day.

[00:19:23] Speaker 04:
But they don't get relief here.

[00:19:25] Speaker 04:
But why is it frivolous to try to, as I think your friend on the other side said, judges see things differently sometimes.

[00:19:36] Speaker 04:
And I refer you to the Washington case, which I happen to be on.

[00:19:42] Speaker 04:
And they blew one day.

[00:19:43] Speaker 04:
It was a capital case.

[00:19:45] Speaker 04:
It was a habeas.

[00:19:46] Speaker 04:
And the court ultimately

[00:19:48] Speaker 04:
We denied them relief initially, and then we went en banc.

[00:19:53] Speaker 04:
I happened to be in the dissent saying that they didn't have a good reason, but I lost there.

[00:20:01] Speaker 04:
I'm in the dissent.

[00:20:02] Speaker 04:
That's what that's called.

[00:20:03] Speaker 04:
I lost, you know?

[00:20:04] Speaker 04:
And so why can't she be hopeful that maybe that trying on another panel, like in Washington,

[00:20:18] Speaker 04:
They might be successful, because it's just one day.

[00:20:21] Speaker 04:
It's just one day.

[00:20:22] Speaker 04:
And judges have hearts, despite what people say.

[00:20:27] Speaker 04:
And sometimes they can blow up to the size of a BB, and you might get that one day chance.

[00:20:36] Speaker 00:
Of course, but I just want to make it clear that we do not have here an appeal from a motion to dismiss.

[00:20:44] Speaker 00:
What we have here is an appeal from a denied motion for relief under Rule 60B1, which was brought 54 days after the dismissal of the case, after a dismissal of an appeal pursuant to a stipulation.

[00:21:01] Speaker 04:
All right, was the 60B untimely?

[00:21:04] Speaker 00:
We would argue that it is untimely under certain non-circuit precedent that indicates that in a case like this, it should be filed within the time to appeal, within the 30 days on these types of facts.

[00:21:15] Speaker 00:
There's no justification to wait beyond the time allotted for an appeal to come up with the arguments that opposing counsel has presented.

[00:21:24] Speaker 04:
So what I heard from you, I was listening very carefully to what you said, and the facts in this case is,

[00:21:33] Speaker 04:
Your client somehow, she fell out of, your client was taken in a wheelchair on a plane ride and she falls out and then she dies of something.

[00:21:41] Speaker 04:
It looks like, one could argue, completely unrelated.

[00:21:45] Speaker 04:
And so you basically imply, this case should have never gotten off the ground anyway.

[00:21:51] Speaker 04:
So it's a bad case, but we're in the case law.

[00:21:57] Speaker 04:
does it say we can peek under the covers and decide whether the one day it's a good case or a bad case?

[00:22:04] Speaker 04:
Because Washington was a death penalty case.

[00:22:07] Speaker 04:
And the one day, and it was a habeas, and the court could peek under the covers and say, oh, we don't want to execute a guy without letting him have his habeas.

[00:22:15] Speaker 04:
We're going to give him the one day.

[00:22:17] Speaker 04:
But here, this case is sort of factually shaky.

[00:22:22] Speaker 04:
Let's say RIP, put it to rest.

[00:22:25] Speaker 04:
One day, we're not going to give you a break.

[00:22:27] Speaker 00:
No, I'm not sure I'm making that argument.

[00:22:29] Speaker 04:
Oh, you said something.

[00:22:30] Speaker 04:
There was something that you said that made me indicate this case never should have gone anywhere anyway.

[00:22:35] Speaker 00:
No, no, no.

[00:22:38] Speaker 00:
The appeal of the motion for relief from judgment should not have been filed in the first place.

[00:22:48] Speaker 00:
That's the only thing I meant.

[00:22:50] Speaker 00:
I did not mean to imply anything about the merits of the case.

[00:22:53] Speaker 00:
We never got to the merits of the case.

[00:22:54] Speaker 04:
But if you were on the other side, hypothetically, you blow the statute of limitations by one day, aren't you going to try to do anything to try to... I mean, I...

[00:23:04] Speaker 04:
You've got to show, don't you have to show some bad faith, some frivolousness, and let's just say I think they're just incompetent.

[00:23:13] Speaker 04:
Okay, let's just say, I'm just saying that hypothetically, but let's say that that's what I think.

[00:23:19] Speaker 04:
How does that satisfy the sanctioning here?

[00:23:24] Speaker 00:
So that's not the only thing we have, and if it pleases the court, I will repeat, because it's a lot of factors.

[00:23:29] Speaker 00:
I cannot remember them, but... When you're doing this analysis,

[00:23:33] Speaker 01:
Talk about the merits of their, the quality and merits of their motion.

[00:23:38] Speaker 00:
So just to give you the procedural background of what has happened here.

[00:23:42] Speaker 00:
So one, plaintiff's counsel filed a complaint late, then waited six months to serve it, failed to substantively respond to our meet and confer efforts before filing the motion to dismiss, raised frivolous arguments in response to the motion to dismiss, filed the opposition to the motion to dismiss nine days late and after our reply was already passed due.

[00:24:00] Speaker 00:
Six, failed to submit a proposed statement of decision per Judge Wolter's requirements.

[00:24:07] Speaker 00:
7.

[00:24:08] Speaker 00:
Did not request leave to amend the complaint.

[00:24:10] Speaker 00:
8.

[00:24:10] Speaker 00:
Did not timely move the court for reconsideration or for leave to supplement the facts or the law at any point.

[00:24:15] Speaker 00:
9.

[00:24:16] Speaker 00:
Filed an appeal.

[00:24:17] Speaker 00:
10.

[00:24:17] Speaker 00:
Dismissed the appeal after we indicated that we would be seeking sanctions for a frivolous appeal.

[00:24:22] Speaker 00:
11.

[00:24:23] Speaker 00:
Filed a belated motion for relief under Rule 60B in violation of the local rules and the court standing order which was stricken from the record.

[00:24:30] Speaker 00:
12.

[00:24:31] Speaker 00:
Failed to meet and confer properly before filing a renewed motion to relief.

[00:24:35] Speaker 00:
13.

[00:24:36] Speaker 00:
failed to file the motion for relief within a reasonable time, which we would argue is 30 days after the motion to dismiss.

[00:24:46] Speaker 00:
14, failed to submit a proposed statement of decision in violation of the district court's standing order and the local rules.

[00:24:53] Speaker 00:
And in addition, on top of that, of course, we have the failure to address any of the arguments

[00:24:58] Speaker 00:
You know, we're answering a brief failure to file a reply, which is disrespectful to this court.

[00:25:02] Speaker 04:
I think this court is busy enough without having to... Well, okay, but you asked... Did the district court sanction them?

[00:25:09] Speaker 04:
I think... You asked for sanctions down there, right?

[00:25:12] Speaker 04:
And the district court had just a chance to be pretty irritated about this, but did the district court sanction them?

[00:25:19] Speaker 00:
The district court did not sanction them.

[00:25:21] Speaker 00:
And why not?

[00:25:22] Speaker 00:
In my experience with working with Judge Walter, I think he's just not a judge who easily awards sanctions.

[00:25:28] Speaker 00:
And I think he probably thought that the dismissal of the case is a sanction big enough.

[00:25:32] Speaker 04:
Should I take that into consideration in deciding whether this was bad faith or frivolous?

[00:25:38] Speaker 04:
Because Judge Walters usually doesn't, because he's a good guy and he's mellow and he doesn't slam people right away.

[00:25:45] Speaker 00:
I do not think so.

[00:25:46] Speaker 00:
I think that Judge Walter thought that the dismissal of the case was enough of a sanction.

[00:25:50] Speaker 00:
However, to take it further and to file an appeal in the way that it was presented to this court, I think that's where the message has to come across, a strong message from this court that this will not be tolerated.

[00:26:02] Speaker 04:
But you're not just limiting this to the appeal, right?

[00:26:08] Speaker 04:
You haven't given us a number here.

[00:26:10] Speaker 00:
So in fact, I am limiting it to the appeal.

[00:26:14] Speaker 00:
And if it pleases the court, the sanctions could go to the court itself in whichever amount the court determines.

[00:26:22] Speaker 04:
So you're not going to ask for sanctions of every long laundry list of incompetence that you just went through?

[00:26:29] Speaker 00:
This is the background to show that what culminated.

[00:26:34] Speaker 04:
What are you asking for sanctions for?

[00:26:38] Speaker 00:
preferably to recover some of the attorney's fees that our client has spent in responding to this frivolous appeal.

[00:26:44] Speaker 00:
And if the court is not inclined to grant that, then any sanction that will send a strong message does not have to be a monetary.

[00:26:50] Speaker 04:
You're asking for sanctions against the law firm, too?

[00:26:53] Speaker 00:
Against the law firm.

[00:26:54] Speaker 04:
But I have found cases that said you can't sanction the law firm.

[00:26:57] Speaker 04:
You can sanction the individuals.

[00:26:59] Speaker 00:
I believe that it is appropriate under 28 USC section 1927.

[00:27:03] Speaker 01:
What's your case authority for that?

[00:27:07] Speaker 00:
Just a moment.

[00:27:17] Speaker 01:
How many people are currently in the other side's law firm, if you know?

[00:27:24] Speaker 00:
I know that their website states that they have more than 10 offices and that they appear on CNN constantly.

[00:27:29] Speaker 00:
I'm not sure what they currently have.

[00:27:51] Speaker 00:
So at this point, unfortunately, my best case is Rudder-Guide.

[00:28:02] Speaker 04:
The Rudder-Guide?

[00:28:03] Speaker 00:
Rudder-Guide, correct.

[00:28:04] Speaker 00:
Any attorney who multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess cost expenses and attorney's fees reasonably incurred because of such conduct.

[00:28:15] Speaker 04:
Well, I'm looking at trans-America life

[00:28:19] Speaker 04:
versus Aruta Yanyan or whatever, issuing an OSC as to why the court should not impose 1927 sanctions in a case where the defendant failed to comply.

[00:28:30] Speaker 04:
And I'm looking at that case and I'm also, I want to finding, sanctioning the law firm.

[00:28:46] Speaker 04:
that I'm looking at Cass v. Wells Fargo, a Ninth Circuit 2015 case, where based on our review of the plain language of the statute and our consideration of the persuasive reasoning of some of our sister circuits, we hold that 28 U.S.C.

[00:29:06] Speaker 04:
section 1927 does not permit the award of sanctions against a law firm.

[00:29:13] Speaker 04:
So tell me why that's not on point.

[00:29:16] Speaker 00:
That does sound on point, Your Honor.

[00:29:18] Speaker 00:
And if that is your ruling on this issue, then I absolutely respect that.

[00:29:23] Speaker 01:
Well, are you seeking sanctions against an individual, like the person who signed this blue brief?

[00:29:31] Speaker 00:
Absolutely, Your Honor, yes.

[00:29:35] Speaker 04:
OK.

[00:29:36] Speaker 04:
OK.

[00:29:36] Speaker 03:
Do any of my colleagues?

[00:29:38] Speaker 03:
So let me- Shredder has a question for you.

[00:29:41] Speaker 03:
Yes, let me make sure I understand your position.

[00:29:42] Speaker 03:
You're only asking for sanctions for this appeal.

[00:29:46] Speaker 03:
Not for any of the litany, the things that you were talking about before.

[00:29:51] Speaker 00:
Correct, Your Honor.

[00:29:51] Speaker 03:
And this appeal was timely filed and was briefed in accordance with the rules, right?

[00:29:58] Speaker 00:
Correct.

[00:29:58] Speaker 00:
I'm just asking the court to take into consideration the background of how this appeal.

[00:30:02] Speaker 03:
So you're really asking us to look at the merits of the appeal?

[00:30:06] Speaker 00:
Correct.

[00:30:08] Speaker 03:
All right.

[00:30:12] Speaker 04:
We don't have any additional questions.

[00:30:13] Speaker 04:
You're free to use the balance of your time, but you don't have to if you don't want to.

[00:30:18] Speaker 00:
Thank you, Your Honor.

[00:30:19] Speaker 00:
I will just conclude with respectfully requesting that the judgment of Judge Walder be affirmed.

[00:30:24] Speaker 04:
Thank you.

[00:30:25] Speaker 04:
All right.

[00:30:27] Speaker 04:
I'm giving the appellant one minute.

[00:30:31] Speaker 02:
Thank you, Your Honor.

[00:30:32] Speaker 02:
I would just like to conclude by saying that counsel has not presented any

[00:30:39] Speaker 02:
theory that is viable in my opinion, that this appeal is frivolous and therefore they should not be entitled to sanctions.

[00:30:49] Speaker 02:
And I also believe that this court should vacate the dismissal of this case so that it can be decided on the merits, as is the strong public policy preference of this court.

[00:31:01] Speaker 02:
Thank you.

[00:31:03] Speaker 01:
I'm not done with you, counsel.

[00:31:05] Speaker 01:
Do you agree that the contents of this appellate brief include misstatements of fact to the court and argue material that is actually unsupported by the record?

[00:31:20] Speaker 02:
No, I do not, Your Honor.

[00:31:21] Speaker 02:
All of the arguments that are, to my knowledge, that are located in that brief have been, are supported by facts in the motion to reconsider and the motion to, I'm sorry, our motion to reconsider and our response to, opposition to the motion to dismiss.

[00:31:38] Speaker 01:
Legally cognizable facts.

[00:31:40] Speaker 01:
You believe that they are?

[00:31:42] Speaker 02:
Yes.

[00:31:48] Speaker 04:
All right.

[00:31:50] Speaker 04:
Thank you both for your argument in this matter.

[00:31:52] Speaker 04:
It will stand submitted.

[00:31:53] Speaker 02:
Thank you.