[00:00:00] Speaker 02:
Thank you both for your argument in this matter. All right, the next matter on calendar is We the Patriots USA and Jane Doe versus Ventura Unified School District, case number 25-5239.

[00:00:27] Speaker 02:
Okay, and each side has ten minutes here. I note that the appellees who don't have rebuttal time have designated Jacqueline Young to have six minutes, Leonard Garfinkel to have one minute, and David Adida to have three minutes. Am I correct?

[00:00:48] Speaker 03:
That is correct. Okay.

[00:00:51] Speaker 02:
Okay. So, oh, okay, I was going to say I don't see three of you there, but there's the third. Okay, and so we're ready to proceed.

[00:01:01] Speaker 04:
Morning, Your Honor. Cameron Atkinson for We the Patriots USA and Jane Doe.

[00:01:08] Speaker 04:
May it please the court, may I have two minutes for rebuttal, please?

[00:01:13] Speaker 02:
If it works. That's aspirational, as you've seen. But, yes, I will note that. Thank you.

[00:01:19] Speaker 04:
Thank you, Your Honor. With respect to likelihood of the success on the merits, I've been listening to the arguments previously, and I think what we're talking about on a broader doctrinal level here is where do we look for a source to reconcile the conflict between the state's police power and protecting public health and the First Amendment right. And to us, You look at Mirabelli for that because at a conceptual level, like it or not, the state had concerns about gender dysphoria in Mirabelli.

[00:02:01] Speaker 04:
It enacted policies the districts followed.

[00:02:04] Speaker 06:
Council, before you get to the merits, I think there's a jurisdictional question that we should be addressing too, correct?

[00:02:11] Speaker 04:
Sure, Your Honor. I can start there. Yes. So with respect to the jurisdictional issue, we do believe you need to treat this case as a preliminary injunction. We asked Judge Berardi for a preliminary injunction twice.

[00:02:31] Speaker 04:
There were conflicting procedural messages sent by Judge Berardi in our view.

[00:02:40] Speaker 02:
He denied our initial application for what would be a true... Well, we care about our jurisdiction, so why should we construe the district court's August 15, 2025 order as an appealable denial of a motion for a preliminary injunction instead of the denial of an application for a temporary restraining order, which is not appealable?

[00:03:03] Speaker 02:
So one gets you in the door, the other you're out.

[00:03:06] Speaker 04:
I understand that, Your Honor, and To us, we look at your precedent in MR v. Dreyfus, where a motions panel of this court found that in order to stay in a case in canceling a preliminary injunction because of a TRO appeal was rendered the denial tantamount to denying the preliminary injunction. I recognize that. that there is an argument to distinguish that case here.

[00:03:39] Speaker 04:
But really what we're looking at is we did ask for a preliminary injunction. We used the e-filing event that would allow us to ask for a preliminary injunction.

[00:03:50] Speaker 05:
Maybe you can just clarify me to make sure I understand the procedural part on this. So you decided to file your lawsuit, and you filed it, and then you went in for a TRO?

[00:03:58] Speaker 04:
Yes, sir.

[00:04:00] Speaker 05:
Without notice?

[00:04:01] Speaker 04:
Yes, sir.

[00:04:02] Speaker 05:
And the district court said, no, you can't do that?

[00:04:06] Speaker 04:
Yes, on a finding of there was no irreparable harm because we waited too long. Also, they didn't comply with local rules, too.

[00:04:15] Speaker 05:
So you went in for a TRO without giving notice to the other side. Is that correct?

[00:04:23] Speaker 04:
Not exactly, because we did make efforts to contact their office pursuant to Federal Rule Civil Procedure 65. We did make attempts to do notice on that initial application. Right.

[00:04:41] Speaker 05:
And Judge Barat said, no, you can't, that doesn't work, you've got to give notice here. Yes, sir. Right, and he denied it.

[00:04:48] Speaker 04:
Correct.

[00:04:48] Speaker 05:
Right, and then you waited, what was it, two months? Yes. Approximately, yes. And then you went in on another application for a TRO? And it said application for TRO and preliminary injunction?

[00:05:00] Speaker 04:
Yes, sir.

[00:05:01] Speaker 05:
And the district court denied it again?

[00:05:04] Speaker 04:
Yes, sir.

[00:05:05] Speaker 05:
And now you're saying that he actually denied the preliminary injunction?

[00:05:09] Speaker 04:
Yes, because we were clear.

[00:05:10] Speaker 05:
Because you asked for a preliminary injunction?

[00:05:12] Speaker 04:
Yes, sir. Because we were clear. And his order does state that he was denying everything.

[00:05:21] Speaker 04:
I grant it, it's not the clearest denying everything. There is an argument.

[00:05:26] Speaker 05:
Didn't he cite the local rules as the basis for the denial? As one of the basis, Your Honor. What was the other basis? I can't recall.

[00:05:34] Speaker 04:
I believe he had five basis for denying it. One was the irreparable harm. The one was not having a sworn affidavit pursuant to local rule 65.

[00:05:52] Speaker 04:
I recall a couple of additional arguments about whether our findings about whether we were asking for ex parte relief or whether we were asking for expedited relief. He concluded we were asking for ex parte relief. I recall an additional argument about I recall an additional conclusion that we didn't have the right to notice a motion.

[00:06:19] Speaker 05:
Did you ask him in that application to set a hearing on the preliminary injunction?

[00:06:24] Speaker 04:
Yes, Your Honor.

[00:06:25] Speaker 05:
And what did he do with that?

[00:06:26] Speaker 04:
That was one of the basis for citing procedural noncompliance.

[00:06:32] Speaker 05:
You usually have to give notice to the other side if you're going to ask for an order shortening time.

[00:06:36] Speaker 04:
So all the parties, to my understanding, had appeared in the case at that time.

[00:06:42] Speaker 05:
Were they there when you applied for this temporary straining order and preliminary injunction?

[00:06:50] Speaker 04:
Yes, they had.

[00:06:51] Speaker 05:
Everybody showed up at the same time on the TRO?

[00:06:53] Speaker 04:
There was no TRO hearing. We e-filed it. Everybody got notice of the application through the e-filing system. There were no oral complaints.

[00:07:05] Speaker 05:
So you didn't ask him to set... You didn't ask him to shorten time and set a preliminary injunction hearing?

[00:07:14] Speaker 04:
What we did is we asked him to set it, and then on the e-filing system, there was a box for the filing event that we used that would not allow us to proceed until we noticed, as if we were noticing a regularly noticed motion.

[00:07:35] Speaker 04:
I went to Judge Berati's calendar. I looked at his chamber preferences. I selected a date that I thought complied with his chamber. And it didn't. His basis for his order on that, as I recall it, was that we did not have the right to set that. He had the right to set that. And so We did make an attempt.

[00:08:00] Speaker 05:
If you don't give the notice that's required by the federal rules and by the local rules, then, you know, he absolutely has the right to set it.

[00:08:10] Speaker 04:
I understand that, Your Honor.

[00:08:12] Speaker 05:
And that invokes all kinds of other procedures. And this is why I relate this to you because I used to do this. You know, I did this as a district court judge.

[00:08:20] Speaker 04:
I understand that, Your Honor.

[00:08:22] Speaker 05:
And I wasn't surprised that Judge Barat, I mean, he just didn't comply with the procedure, so.

[00:08:27] Speaker 04:
WELL, TO ME, THE ONLY PLACE THAT I BELIEVE WE DID NOT COMPLY WITH THE PROCEDURES WAS ON THE LOCAL RULE 65 CERTIFICATION.

[00:08:37] Speaker 04:
I did it as a federal rule, 65 certification, which I, my understanding... well, counsel, in the normal course, after Judge Barak denied that second motion, you could have filed another one, right?

[00:08:51] Speaker 07:
A case for a firm preliminary injunction using... presumably then following the rules as he set out, but then it was stayed. Correct. Right?

[00:09:03] Speaker 04:
Yes, Your Honor.

[00:09:03] Speaker 07:
So how does that play into whether or not we have jurisdiction here?

[00:09:08] Speaker 04:
It's a tantamount denial because I would have to go back and have him vacate the stay order. The rationale for the stay order was we have these other cases out there. It's more efficient to resolve these other cases, including the cases in front of me this morning, and I'm going to stay it and let it be efficient.

[00:09:32] Speaker 07:
Can I ask, do you think that we had appellate jurisdiction based off of the denial of the second order by itself because that was a denial of a preliminary injunction, or do you also need the fact that A stay was entered shortly afterwards, which then makes it tantamount that you can't apply for a preliminary injunction.

[00:09:50] Speaker 04:
We argued both. I read his order on his face as denying everything. And then the stay was just icing on the cake where I can never get back in there unless he vacates that. And reading the rationale for his stay order, it would have been futile. because nothing changed under the reconsideration standard.

[00:10:15] Speaker 02:
I think we're aware of the procedures here. Do you have any additional questions? Okay, you're basically almost out of town, so I'll give you time. If you want two minutes for rebuttal, I suggest we listen to the other side.

[00:10:28] Speaker 04:
Thank you. Thank you.

[00:10:29] Speaker 02:
Good morning.

[00:10:39] Speaker 02:
Good morning.

[00:10:40] Speaker 00:
Good morning, Your Honors. May it please the Court, Jacqueline Young, appearing on behalf of Appellee Dr. Erica Palm.

[00:10:46] Speaker 00:
Like Royce and Grimsby, this case raises important questions about the intersection of public health law and religious liberty. We do not minimize those questions or the sincerity of the parents who raised those questions. But in this appeal, this Court should not reach the merits for three reasons. First, this appeal should be dismissed for lack of jurisdiction. As Judge Callahan noted, TRO denials are generally non-appealable, and here appellants have not established an applicable exception. Second, even if this court finds that there is jurisdiction, as Judge Paez noted, there are multiple procedural violations, and here the district court's order should be affirmed on procedural grounds.

[00:11:27] Speaker 00:
And finally, third, this record is incomplete and unfit for appellate review because it stems from serial TRO filings and has not been developed by all parties involved through ordinary adversarial process.

[00:11:41] Speaker 00:
Starting on the first issue of jurisdiction, appellants' argument here is twofold. Appellants asked this court to treat their TRO denial as a PI denial, and they based this on the fact that the title of their document, the title of their application, included the words preliminary injunction. However, in the Supreme Court's case of Abbott v. Perez, it's well established that the label attached to a document is not dispositive. There, the court looked at whether or not the TRO denial had the practical effect of a denial of a PI.

[00:12:15] Speaker 00:
In this court, this court applies the tantamount exception of whether the TRO denial is a merits-based decision that follows full briefing and a full adversarial hearing. None of those circumstances, none of those hallmarks are present here, and that's been apparent by the litigation choices that appellants have made.

[00:12:34] Speaker 07:
So your argument is that because it's just merely a label of preliminary injunction, I think that's right. It just says it on the label. Does it address preliminary injunction in the body of that motion?

[00:12:47] Speaker 00:
Not to the substance, Your Honor. It does seek injunctive relief, and in parts of the application, it does ask the court to set an expedited hearing for a preliminary injunction. But, Your Honor, again, looking back and going through the procedural history that Judge Paez noted, none of the actions taken by appellants here have indicated that they actually sought to comply with Federal Rule of Civil Procedure 65.

[00:13:11] Speaker 07:
Well, that's a separate question whether or not they complied with the procedures. This question is whether or not they were seeking a preliminary injunction, right? If they were legitimately seeking a preliminary injunction, no matter what reason they were denied, we would have appellate jurisdiction. Wouldn't you agree?

[00:13:26] Speaker 00:
Yes, Your Honor. Had they filed a motion for preliminary injunction, there would be jurisdiction, right?

[00:13:32] Speaker 05:
Assuming that they did. Yeah, whatever the court then did.

[00:13:37] Speaker 07:
But I guess my question, are you suggesting they didn't file for preliminary injunction or that we should just exclude the superficial labeling? What's your argument exactly?

[00:13:48] Speaker 00:
The argument is that here, and appellants conceded in their briefing, they did not file or seek a motion for preliminary injunction. Instead, what they sought was emergency relief from the district court for an expedited hearing Granted, the relief that they seek between the TRO and the PI on a macro level is to enjoin the state's enforcement administration of the school vaccine law. But with the TRO application itself, they were seeking emergency relief. And here, the district court did not abuse its discretion in finding that they did not establish an urgent need for that emergency.

[00:14:23] Speaker 07:
Yeah, I mean, that's going to the merits, though. I'm still just trying to get to the question of whether or not they were seeking a preliminary injunction. It seems like they were. I don't think they conceded they were not. It seems like they were not using proper procedures or proper language, but it does seem like they were trying to get a preliminary injunction.

[00:14:40] Speaker 00:
Yes, Your Honor. It goes back and forth. In the TIRA application, they note, we are not asking for ex parte relief on expedited hearing for a preliminary injunction.

[00:14:49] Speaker 02:
Right. Okay, so if we decide they're not seeking, if they haven't properly sought a preliminary injunction, then we dismiss it because we don't have jurisdiction. if we decide that somehow that they were trying to, but not very successfully, then your position is that we should just affirm the judge for kicking it out for all the violations of the rules, right?

[00:15:14] Speaker 00:
Yes, Your Honor. Even if this court were to grant them and grant their claims and say that they were trying to and unsuccessfully sought a preliminary injunction, then we look at the procedural violations Here, Judge Paez asked about ex parte notice. It's not just a matter of ex parte notice, Your Honor. Between the months of filing the suit and initiating this appeal, appellants sought out five different TRO applications, three before the district court, an emergency motion for injunction pending appeal in this court, and a writ of injunction before the Supreme Court.

[00:15:48] Speaker 00:
They did all of this without serving four of the six defendants. So here, another reason why the district court's order should be affirmed on procedural grounds is at the time that they filed the second TRO application, the district court had no jurisdiction over the Department of Public Health, the state superintendent, or the Ventura district attorney to issue any of the relief that they were seeking through either their TRO slash PI.

[00:16:13] Speaker 02:
Okay, so dismiss or affirm is your position. Yes, Your Honor. Any other questions?

[00:16:18] Speaker 07:
Just one quick one. How does the fact that the proceedings were stayed shortly after the denial play into it? Because that Because in the normal course, if the judge denied it, they could have filed again for a preliminary injunction and then followed all the proper procedures as the judge told them to do, but then they were precluded from doing that by the stay. Does that then make it tantamount to denial of preliminary injunction?

[00:16:44] Speaker 00:
No, Your Honor, and two points there. First, the first TRO denial was issued on June 17th. They had filed their first TRO application on May 24th, two days after their complaint. In that order, the district court expressly noted there's no basis here for why this matter cannot be put on a regularly noticed motion. So there there was an instruction from the district court, file your motion for an injunction and we can decide the merits. They did not do that. They waited two months to seek a second TRO.

[00:17:14] Speaker 07:
But they were trying to compromise, right? They're trying to get a settlement. So anyway, keep on going.

[00:17:18] Speaker 00:
And the second point, Your Honor, is we can just go back to the previous case of Grimsby. In Grimsby, the Department of Public Health also filed a motion for stay, and the Grimsby plaintiffs, they filed a motion for preliminary injunction, and today they were properly before this court with jurisdiction. So the tantamount exception here, Your Honor, in terms of whether or not this court should treat the PI denial with the practical effect of a PI denial, the circumstances, and under this court's precedence and the Supreme Court precedence, the answer is no.

[00:17:49] Speaker 02:
Okay, thank you. So then we're going to, are we hearing from Mr. Garfinkel?

[00:17:56] Speaker 02:
You have one minute, so say your name quickly.

[00:18:00] Speaker 01:
Good morning, Your Honors. Len Garfinkel for Superintendent Thurmond. I'd like to briefly emphasize the jurisdictional point. The Department of Education was not notified of or served with appellant's requests for relief and therefore not given the opportunity to respond. The appellant does not address and therefore concedes the point. I'm mindful of time here, so I'm open to any questions from the court, but if there are no questions, I'll defer to leave plenty of time for counsel for the school district.

[00:18:26] Speaker 02:
Okay. You left 33 minutes for 33 seconds or whatever for Mr. Adida.

[00:18:38] Speaker 03:
May it please the court, David Adida, the attorney for the Appellees Ventura Unified School District. And Superintendent Castro, I promised my colleague that I would not say anything about the issues that they talked about, but I have to. And I believe it's an answer to your question with respect to the 10-amount labeling. I don't believe it applies for this reason, Your Honor.

[00:19:09] Speaker 03:
The TRO slash preliminary injunction was denied, right? And then there's a period of nine days where the appellant then files a notice of appeal. And then after that notice of appeal is filed, that's when we have the proceedings that resulted in the order to stay the district court. So by the time they filed their notice of appeal, there was no order to stay in existence.

[00:19:43] Speaker 03:
So they can't use that now. to say, oh, by the way, dismissal, dismissal, oops, order to stay. Now we have tantamount dismissal.

[00:19:52] Speaker 07:
So that appeal that was a file before the stay is what's now on appeal now?

[00:19:56] Speaker 03:
Correct, yes.

[00:19:58] Speaker 07:
That's fair.

[00:19:58] Speaker 03:
Okay, going back to the issues involving these appellees, the appellant argues that Cohn v. State of California should be – requires this court to reopen the arm of the state analysis for school district.

[00:20:18] Speaker 03:
I say it doesn't, and not simply because Cone specifically noted that its refined framework was unlikely to lead to different results. But, but, even if we did, the three factors articulated in Cone are lenses through which the court examines a single overarching question.

[00:20:48] Speaker 03:
When you look at how California has actually set up this entity, not just what the label it carries, not what powers it may have on paper, But the full picture, let's look at the full picture of where it came from, who controls it, and whose money is at stake.

[00:21:13] Speaker 03:
Is this really a piece of the state operating at the local level, or is it a generally independent local body that happens to receive state funds? Well, if we go through that structure, structural assessment, it's clear that in California, school districts are instrumentalities operating at the local level.

[00:21:46] Speaker 03:
In California, it's the state's obligation to provide a public education. The state funds it through a system Belanger said was hopelessly intertwined. The state regulates it through mandatory accountability requirements that Sato held reflect ongoing state dominance. And the state remains constitutional responsible when it fails.

[00:22:21] Speaker 03:
So, for example, in Butt v. State, when a district was about to close its schools, the California Supreme Court ordered state officials to prevent the unconstitutional school closure.

[00:22:38] Speaker 03:
Sure, boards have, there's an elected board, the power to sue, the property holdings, those are operational features that California gave school districts so that they could function day to day. These local attributes were specifically considered and Explicitly rejected in Sato. They do not make Ventura Unified School District independent of the state.

[00:23:09] Speaker 03:
Any more than giving a branch office its own letterhead makes it independent from the parent company. And if I have a little bit more time.

[00:23:22] Speaker 03:
I will go into the expo.

[00:23:25] Speaker 02:
You have a minute and 17 seconds.

[00:23:27] Speaker 03:
Beautiful.

[00:23:28] Speaker 02:
Oh, wait, no, you're on overtime. You don't have more time. Oh, I don't have more time. You don't have more time. Let me see if you want me. Do you have any more questions? No. Nope, you don't have more time.

[00:23:36] Speaker 03:
Thank you, Your Honor.

[00:23:37] Speaker 02:
Okay, thank you.

[00:23:38] Speaker 03:
Appreciate it.

[00:23:39] Speaker 02:
This matter is submitted.

[00:23:40] Speaker 06:
Do you have rebuttal?

[00:23:44] Speaker 02:
Yes, we do. Oh, no, you have rebuttal. I'm sorry. I'm just going crazy here. Okay. With the time clock. Okay.

[00:23:56] Speaker 02:
Thank you, Judge Pumatay. Of course.

[00:23:58] Speaker 04:
Thank you, Your Honor. So with respect to the 11th Amendment argument, you should not resolve 11th Amendment at this stage in the proceeding simply because of the Orange County case.

[00:24:18] Speaker 04:
in Orange County, the school district sued the state of california over a federal funding issue, and the state of California didn't assert immunity. it allowed a dispute between essentially what is now being claimed as interstate agencies to be resolved by federal court.

[00:24:46] Speaker 04:
The schools are created, the local school agencies are created as separate entities.

[00:24:54] Speaker 04:
They do act as separate entities, and we believe they would, under the cone test, they are indeed separate and not appropriate for 11th Amendment immunity. If the court does not have further questions, I'll rest on the briefs.

[00:25:14] Speaker 02:
We do not. All right. Thank you. Thank you, everyone, for your argument. That matter will stand submitted.