# Abrera v. Newsom > District Court, E.D. California · December 9, 2022 URL: https://www.frixlaw.com/law-library/cases/10049099 ## Case - **Court:** District Court, E.D. California - **Decided:** December 9, 2022 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10049099 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARNOLD ABRERA, No. 2:22-cv-01162-JAM-DB 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 14 GAVIN NEWSOM, in his official capacity as Governor of the 15 State of California; ROB BONTA, in his official 16 capacity as Attorney General of the State of California, 17 et al., 18 Defendants. 19 20 Arnold Abrera (“Plaintiff”) petitions the Court to enjoin 21 Governor Gavin Newsom and California Attorney General Rob Bonta 22 (“Defendants”) from enforcing California Code of Civil Procedure 23 § 1021.11 (enacted under Senate Bill No. 1327) against Plaintiff 24 and the citizens of California. See Mot. for Preliminary Inj. 25 (“Mot.”), ECF No. 19. Plaintiff contends that the statute’s fee- 26 shifting provision constitutes an unprecedented, unconstitutional 27 attack on the Second Amendment and those who wish to bring non- 28 frivolous claims to enforce their right to bear arms for lawful 1 purposes. Id. at 3-4. Defendants oppose the motion on both the 2 merits and standing grounds, noting their commitment to not 3 enforce the statute against Plaintiff in this action or any 4 related cases. See Opp’n, ECF No. 22, at 1. Plaintiff replied. 5 See Reply, ECF No. 24. 6 For the reasons set forth below, this Court DENIES 7 Plaintiff’s motion for preliminary injunction.1 8 9 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 10 Plaintiff’s firearms, two handguns and two semi-automatic 11 rifles, were seized from his home after officers responded to a 12 suicide threat from Plaintiff’s wife; the seizure occurred 13 pursuant to California Welfare and Institutions Code §§ 5150, 14 8102, and 8103. Mot. at 2. Shortly thereafter, Plaintiff filed 15 a complaint against Defendants and other state parties, alleging 16 that the seizure violated his Second Amendment rights. See 17 Compl., ECF No. 1. Several months later, Plaintiff filed the 18 operative first amended complaint (“FAC”), adding causes of 19 action challenging § 1021.11, which covers the fee-shifting 20 provisions in Senate Bill No. 1327. See FAC, ECF No. 16. 21 § 1021.11 permits state entities and officials charged with 22 enforcing laws that regulate or restrict firearms to collect 23 attorney’s fees and costs from any person or entity who pursues 24 declaratory or injunctive relief against the enforcement of those 25 laws if the state is the prevailing party; the state may seek 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for November 15, 2022. 1 these costs and fees within three years of the date when the 2 dismissal or denial of relief became final on appellate review or 3 when the time for seeking appellate review expires. Cal. Civ. 4 Pro. Code § 1021.11. 5 A couple of weeks after filing the FAC, Plaintiff requested 6 by e-mail that Defendants waive enforcement of § 1021.11 against 7 Plaintiff and his counsel for all of Plaintiff’s past, current, 8 and future litigation related to this case. Opp’n at 3. 9 Defendants replied that they would waive enforcement if Plaintiff 10 agreed to withdraw his claims for relief related to § 1021.11, 11 which Plaintiff rejected. Id. at 3-4. A couple of weeks later, 12 Plaintiff filed this motion for preliminary injunction seeking to 13 enjoin Defendants’ enforcement of § 1021.11. Id. at 4. Shortly 14 thereafter, Defendants claim that they notified Plaintiff’s 15 counsel that they would not enforce the statute against Plaintiff 16 in any litigation related to this action, regardless of whether 17 or not Plaintiff amended the FAC; Defendants reiterated this 18 commitment several days later in response to Plaintiff’s 19 statement that he planned to continue with this motion for 20 preliminary injunction. Id. at 4-5. Plaintiff contends that 21 Defendants have stated that they do intend to proceed with 22 enforcement of § 1021.11 against Plaintiff unless Plaintiff 23 withdraws this motion. Mot. at 6. On October 20, 2022, 24 Defendants filed their opposition brief, arguing that 25 (1) Plaintiff lacks standing and (2) Plaintiff has alleged 26 insufficient facts to establish the requisite elements for a 27 preliminary injunction. See Opp’n. Plaintiff replied. See 28 Reply. 1 II. OPINION 2 A. Legal Standard 3 A defendant may move to dismiss for lack of subject matter 4 jurisdiction pursuant to Federal Rule of Civil Procedure 5 12(b)(1). Fed. R. Civ. P. 12(b)(1). 6 If a plaintiff lacks standing, then the Court lacks subject- 7 matter jurisdiction, and the case must be dismissed. See Maya v. 8 Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). Once a party 9 has moved to dismiss for lack of subject-matter jurisdiction 10 under Rule 12(b)(1), the opposing party bears the burden of 11 establishing the court's jurisdiction. See Kokkonen v. Guardian 12 Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 13 B. Analysis 14 1. Standing 15 Defendants claim that Plaintiff lacks standing because 16 Plaintiff faces no threat that Defendants will enforce § 1021.11 17 against him. Opp’n at 5. Defendants have committed to not seek 18 fees against Plaintiff in this case or any related matters, which 19 is what Plaintiff is seeking in the FAC. Id. Defendants claim 20 that their commitment to not enforcing the statute against 21 Plaintiff is unconditional and subject to judicial estoppel, 22 which eliminates the need for Plaintiff’s injunction. Id. at 6. 23 Plaintiff responds that Defendants’ stated commitment not to 24 enforce § 1012.11 against him is insufficient to negate standing. 25 Reply at 2. Plaintiff argues that Defendants’ commitment is 26 illusory and does not bind the other defendants named in the FAC 27 nor does it protect other prospective challengers to SB No. 1327 28 and § 1012.11. Id. at 2-3, 10-11. Plaintiff then refers to the 1 Supreme Court’s holding in New York State Rifle & Pistol Ass'n, 2 Inc. v. City of New York, New York, 206 L. Ed. 2d 798, 140 S. Ct. 3 1525, 1526 (2020) to support his contention that Defendants are 4 abusing their positions as state officials for political ends. 5 Id. at 3-4. Plaintiff claims that, regardless of Defendants’ 6 stated commitment, he and other potential litigants have suffered 7 an injury-in-fact due to the chilling effect of the statute, 8 which deters legal challenges. Id. at 7-9. Plaintiff further 9 contends that an injury-in-fact has been established because the 10 statute nullifies 42 U.S.C. § 1988, a federal statutory right. 11 Id. at 10. 12 The Court finds that Plaintiff has failed to establish 13 standing. To have standing, a plaintiff must show that (1) the 14 plaintiff suffered an injury in fact, i.e., one that is 15 sufficiently “concrete and particularized” and “actual or 16 imminent, not conjectural or hypothetical,” (2) the injury is 17 “fairly traceable” to the challenged conduct, and (3) the injury 18 is likely to be “redressed by a favorable decision. Lujan v. 19 Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). For the 20 second factor, a plaintiff must allege “a causal connection 21 between the injury and the conduct” at issue; it is insufficient 22 to connect the injury to the independent actions of a third 23 party. Id. at 560. When a plaintiff alleges a chilling of their 24 First Amendment rights as an injury in fact, the alleged chilling 25 cannot be based solely on a fear of future injury that is too 26 speculative to confer standing. Wright v. Serv. Emps. Int'l 27 Union Loc. 503, No. 20-35878, 2022 WL 4295626, at *5 (9th Cir. 28 Sept. 19, 2022). Further, a plaintiff cannot establish standing 1 through the “mere existence of a proscriptive statute nor a 2 generalized threat of prosecution.” Thomas v. Anchorage Equal 3 Rts. Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000). To establish 4 third-party standing, a plaintiff must show that (1) the third- 5 party suffered an injury in fact, (2) the plaintiff and third 6 party have a close relationship, and (3) the third party faces an 7 obstacle that prevents them from pursuing their own claim. 8 Campbell v. Louisiana, 523 U.S. 392, 397 (1998). 9 In this case, Plaintiff has failed to establish that he 10 faces a concrete and particularized injury from the enforcement 11 of § 1012.11 against him. Defendants have stated in their 12 opposition brief that they do not intend to enforce the statute 13 against Plaintiff in the current action or any related action. 14 By assuming this position in a legal proceeding and maintaining 15 that position, Defendants will be subject to judicial estoppel, 16 absent a showing that: (1) Defendants’ stated position is clearly 17 inconsistent with an earlier position; (2) Defendants have 18 succeeded in persuading a court to accept an earlier inconsistent 19 position; or (3) Defendants’ inconsistent position will “derive 20 an unfair advantage or impose an unfair detriment on the opposing 21 party if not estopped.” Bock v. Washington, 33 F.4th 1139, 1145 22 (9th Cir. 2022). Plaintiff has failed to make a showing of any 23 of these factors. In light of this failure, the Court finds that 24 Defendants are estopped from enforcing § 1021.11 against 25 Plaintiff in this action and related actions, and that Plaintiff 26 has failed to demonstrate an injury-in-fact on this ground. 27 Plaintiff’s claim of a chilling effect must also fail because the 28 threat of future injury from the enforcement of the statute 1 against him is non-existent. Plaintiff’s contention that 2 Defendants’ commitment does not bind the other parties in the FAC 3 is immaterial because Plaintiff narrowed the scope of his 4 injunction to address only Defendants Newsom and Bonta; the 5 speculative, independent actions of third parties not named as 6 parties in this action are insufficient to establish the 7 requisite “causal connection between the injury and the conduct” 8 at issue. Lujan, 504 U.S. at 560. Plaintiff further fails to 9 establish any of the requisite elements for third-party standing 10 on behalf of other potential litigants. As for Plaintiff’s 11 argument concerning the abrogation of 42 U.S.C. 1988, the Court 12 declines to consider it pursuant to Ninth Circuit precedent 13 against the consideration of new arguments or issues raised for 14 the first time in a reply brief. Brown v. Takeuchi Mfg. Co. 15 (U.S.), No. 221CV00392JAMDMC, 2022 WL 1204713, at *4 (E.D. Cal. 16 Apr. 22, 2022) (citing Cedano–Viera v. Ashcroft, 324 F.3d 1062, 17 1066 n.5 (9th Cir.2003)); see also State of Nev. v. Watkins, 914 18 F.2d 1545, 1560 (9th Cir.1990). 19 2. Remaining Issues 20 The Court does not reach the parties’ remaining issues, 21 because the first issue of standing is dispositive. 22 23 III. SANCTIONS 24 This Court issued its Order re Filing Requirements (“Filing 25 Order”) on August 4, 2022. ECF No. 11-2. The Filing Order 26 limits reply memoranda to ten pages. Filing Order at 1. The 27 Filing Order also states that an attorney who exceeds the page 28 limit must pay monetary sanctions of $50 per page. Id. nee en nnn ene nnn enn een nnn nn eo nn 1 Plaintiff exceeded the Court’s l10-page limit on reply memoranda 2 by four pages. See Reply. The Court therefore ORDERS 3 Plaintiff’s counsel to pay $200.00 to the Clerk for the Eastern 4 District of California no later than seven days from the date of 5 this Order. 6 7 Iv. ORDER 8 For the reasons set forth above, the Court DENIES 9 Plaintiff’s motion for preliminary injunction. 10 IT IS SO ORDERED. 11 Dated: December 8, 2022 12 A Tas JOHN A. MENDEZ 14 SENIOR UNITED*STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10049099. Public record. Not legal advice.