# Opposition Brief — California v. M&P Investments

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 944

## Text

No. 02-1081 FIL es

|

ORE,

rFR 24 2003
Jn The

Supreme Court of the Anited States

+
PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,
v.

M&P INVESTMENTS, DAVID MUSTIN, ESTATE OF
FRANK PAUL, JACK ALQUIST, GUILD CLEANERS,
INC., ESTATE OF DWIGHT ALQUIST, PAUL MARIANO,
VICTOR LEONARDINI, AND DELANO GOTELLI,

Respondents.

¢

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

¢

RESPONDENTS GUILD CLEANERS, INC. AND
JACK ALQUIST’S BRIEF IN OPPOSITION

¢ |

RHONDA CATE CANBY, Counsel of Record
STEPHEN J. MEYER

STEVEN H. GOLDBERG

JEAN M. HOBLER

DOWNEY BRAND SEYMOUR & ROHWER
555 Capitol Mall, 10th Floor
Sacramento, California 95814

(916) 444-1000

(916) 441-4021 (fax)

LORI J. GUALCO

LAW OFFICES OF LORI J. GUALCO
455 Capitol Mall, Suite 210
Sacramento, California 95814
(916) 442-6660

(916) 442-0145 (fax)

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Petitioner City of Lodi (the “City”) asks this Court to
review a one-sentence order from the Ninth Circuit that
finds no basis for interlocutory appellate jurisdiction over
an order from the district court. That district court order
analyzed an issue of California law never before ruled
upon by California courts and required the parties to
further brief a preliminary injunction motion in light of
the district court’s factual finding that the State was not,
and never had been, a party to the litigation. Because of
subsequent appealable orders, the same question pre-
sented to this Court is now pending before the Ninth
Circuit.

(1) Did the Ninth Circuit misapply a properly stated
rule of law governing interlocutory jurisdiction of the
federal appellate courts when it dismissed the City’s
appeal for lack of jurisdiction?

(2) Should this Court step in six months before trial
to decide an unresolved question of California law even
though the Ninth Circuit is currently considering that
question?

(3) Did the district court err in determining that the
City was the real party in interest when the City concedes
it does not represent the State yet sues in the name of “the
People of the State of California”?

LIST OF PARTIES

Petitioner’s list of parties is accurate, except for the
inclusion of the Attorney General of the State of Califor-
nia, Bill Lockyear. The State of California has not waived
its sovereign immunity and has never appeared before the
U.S. District Court or the Ninth Circuit Court of Appeals
in this matter.

CORPORATE DISCLOSURE

No parent or publicly held company owns 10% or more
of the stock of Guild Cleaners, Inc.

ili

TABLE OF CONTENTS

Page
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CORPORATE DISCLOSURE ............cccccssssccssscccsseees il
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TRMERME PE PRAT RAMEE ELIS vocesssccsesscvescsncpencsovensvescess vi
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STATEMENT OF THE CASE ...................cecccssceeeeeeees 1
REASONS FOR DENYING THE PETITION............ 5

A. The Ninth Circuit Properly Dismissed the
Appeal Because No Federal Statute Conferred
Jurisdiction Over the May 3, 2002 Order.........

-

The Ninth Circuit’s Order Does Not De-
termine Any Question of Federal Law.......

The Ninth Circuit’s Order Does Not Con-
flict with the Precedents of Any Other Cir-
Di Cella neue dandiinedsseiddanndidersseoereesee

The Collateral Order Doctrine Did Not
Confer Jurisdiction Upon the Ninth Cir-
cuit Because the Appealed Order Deter-
mined an Issue Central to the Determi-
nation of Equitable Relief, i.e., the Identity
of the Plaintiff Seeking Relief...................

a. The Issue Resolved in the District
Court’s May 3, 2002 Order Is Insepara-
ble from the Merits of Injunctive Relief ..

7

iv

TABLE OF CONTENTS -— Continued
Page

b. The Collateral Order Doctrine Did not
Confer Jurisdiction on the Ninth Cir-
cuit Because the District Court’s Order
Was Effectively Reviewable Absent
Immediate Appeal ..................cseeeeeeeeees 10

4. The May 3, 2002 Order Did not Send a
Party Out of Court: “The People’s” Motion
for Injunctive Relief Has Since Been
Granted by the District Court................... 11

B. This Court Should Deny the City’s Petition for
a Writ of Certiorari Because the Order Ap-
pealed from Is Interlocutory....................ceceeee 13

C. Reviewing the District Court’s Order Would
Require this Court to Review a Fact-Specific |
Order Interpreting State Law, Although the
Same Order Has Not Been Previously Re-
viewed in Any State or Federal Court and the |
Same Issues Are Currently Before the Ninth
Circuit Court of Appeals for Review on the
PE Siradhskachinnnntinsomesatenice A btckietecicateaey ek canines 14

1. The District Court’s Order Relied Upon
Fact-Specific Determinations of the Ac-
tions and Motivations of the City of Lodi
in Presenting Itself as the State of Cali-
NE asec cnc dhssplcauceranhedlnersenenabeisnsanenredl 15

2. The City Has Requested Review of a State
Law Determination Before the Ninth Cir-
cuit Court of Appeals Has Considered this
BONN Gh TIO Tos hace sivscnsinceesconsienccenenenss 17

3. No Lower Court Has Acted in Any Fashion
Requiring this Court to Invoke Its Super-
SI PE oi si disnecnsciaicersandsateseteniess 18

TABLE OF CONTENTS - Continued

Page
D. The District Court’s May 3, 2002 Order was a
Valid Interpretation of State Law.................... 20

E. The City’s Petition for a Writ of Certiorari
Contains Legal and Factual Misstatements
Bearing on the Issues Properly Before the
Court if Certiorari Is Granted ......................06 21

CHAIN desta carsitiniecsnesecesiacbccsneiataiatramurteeental 23

TABLE OF AUTHORITIES

Page
FEDERAL CASES
Amer. Construction Co. v. Jacksonville, T-&K.W. Ry.
ee ee. Ce: SMR Rares ment evn meh 13
Bhd. of Locomotive Firemen v. Bangor & Aroostock
BR. CoO, SED UTES CRD netesersiciiaicserserteerieveeunaes 13
Bruner v. United States, 343 U.S. 112 (1952)............0.. 19
Butner v. United States, 440 U.S. 48 (1979)........... eee 17
Catiin v. United States, 324 U.S. 229 (1945)... 11
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541
Ca cine cancia Mh ccccenbaiinaneaneananaen 7,10
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1981) .....7, 10
Digital Equip. Corp. v. Desktop Direct, Inc., 511
0. Be CI in kiccivistneciigsoeeeiinedunentinnae 7
Division 580, Amalgamated Transit Union uv.
Central N.Y. Reg Transit Auth., 556 F.2d 659 (2d
Ue RIF Oo besvssxssacdiserencintescnunae aaa ea 8
Dr. Seuss Enter., L.P. v. Penguin Books, 924 F. Supp.
LEBS GB. Sak... RIE ovtittticcsneserccceineaniieniani 8
Falls City Indus., Inc. v. Vanco Beverage, Inc., 460
U2. GES I kite ccmandiaiaiusatennas 8
Feliciano v. Gaztambide, 836 F.2d 1 (1st Cir. 1987)........... 8
Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
LAS ncicscdancisiesntecessneucecgieecennmaanabemaaacaaan 10
Grupo Mexicano de DeSarrollo S.A. v. Alliance
Bond Fund, Inc., 527 U.S. 308 (1999) .................ccsscceees 19

H.H. Robertson, Co. v. United Steel Deck, Inc., 820
Fe BG CE. Ce i iincicckcctinieeevnaiuannn 8

vii

TABLE OF AUTHORITIES — Continued

Page
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240

Re I II a Tati eehchaar cat oe nies todpistdiiiapeialinhicdabimmiatohsties 13
Herrington v. County of Sonoma, 706 F.2d 938 (9th

Rete: AIT ns:iucadenhedcenhsoinatindebenisnaibniehiiemmaibnbiihddanccbaaebateisebanenen 11
Huddleston v. Dwyer, 322 U.S. 232 (1944)... 17
Mercantile Nat'l Bank v. Langdeau, 371 U.S. 555

FI chciciiectinconechssiaieahceenaecbeadacssabubenkecalanueiaaiaitabibeddiaanGincen 7
Ramirez v. Fox Television Station, Inc., 998 F.2d

Pe a I bic nececiaceih vekisnsveniacetdndouiicehpendounsintindenees 11
The Wharf (Holdings) Ltd. v. United Int'l Holdings,

See See I Ie Ei iatenntetepsenenesncdnatiisetencesenetmmoinens 17
Thermtron Products v. Hermansdorfer, 423 U.S.

PE ATT Lien bonsiaicicabesuaickeeapsaiicdinandas on cibicsratd testa tdbecaadbelte 19
United States v. Lee, 786 F.2d 951 (9th Cir. 1986) ............ 11
United States v. MacDonald, 435 U.S. 850 (1978)............ 10
United States v. Ryan, 402 U.S. 530 (1971)... 10
Wakefield v. Thompson, 177 F.3d 1160 (9th Cir.

SITE cons vase tlndcctctqcaleceduaide ate diouaacnuaeanenaanasabplieaaagaainaenn 11
FEDERAL STATUTES
BE I TE ih ise dick ochch ound ciadanbainacneenmaaueiianineds 11, 14
RS Sane FT oe ee cee eM NY me 2
FEDERAL RULES OF COURT
Bs PICTUS Mire caniagncdadatsebenlaseaustidlecnnsheatccsmaconsedennns 5, 15, 19
SN aie Ms IED cp tisiesicnevciconte ceinecaconsnne dimiensnncessiinnnianesntamiaeeseats 21

Vili

TABLE OF AUTHORITIES — Continued

Page
5 SR ee ee 15, 18, 20
I Te Tc tee ee 6

STATE STATUTES
Ree NE GIETE TEY TPT TIEE sincsemeiencincetiiananedanuasneandinsseten 4,15, 17, 20

ae ee ene

JURISDICTION

Jurisdiction over the question presented by the City’s
petition is pending in the Ninth Circuit. The district court
issued the contested order on May 3, 2002, to facilitate its
consideration of the City’s motions for preliminary injunc-
tion. The Ninth Circuit Court of Appeals dismissed the
appeal of that order for lack of jurisdiction on September
13, 2002, and denied Petitioner’s motion for reinstatement
of the appeal on November 18, 2002. On December 31,
2002, the district court issued orders on the City’s two
motions for preliminary injunction. Pursuant to an exten-
sion of time to file its writ petition, the City of Lodi filed
its petition in this Court on January 13, 2003, four days
before filing in the district court a motion for reconsidera-
tion of the same contested order. On January 30, 2003, the
City filed a notice of appeal to the Ninth Circuit regarding
one of the injunctive orders issued by the district court,
including as an issue on appeal the identity of the real
party in interest pursuing nuisance abatement claims in
the name of the People of the State of California’ — the
identical issue the City asks this Court to review.

+

STATEMENT OF THE CASE

| The City invoked the jurisdiction of the United States
| District Court in November 2000, filing a complaint that
contained a single count seeking injunctive relief under

' After the City noticed an appeal to the Ninth Circuit of one of two
December 31, 2002 orders on injunctive relief, the City withdrew its
motion for reconsideration by the district court of its May 3, 2002 order.

2

the Resources Conservation and Recovery Act (“RCRA”),
42 U.S.C. §6972(a)(1)(B), along with several counts
seeking injunctive relief and cost recovery under state law.
In April 2002, the City voluntarily dismissed its RCRA
claim, and the district court exercised its discretion to
retain supplemental jurisdiction over the state law claims
‘to avoid prejudice to the parties.

The City’s complaint alleged five causes of action,
three for injunctive relief and two for cost recovery. The
injunctive relief causes of action were brought only in the
name of “the People of the State of California.” The cost
recovery actions were pursued only in the name of the
City. Defendants Guild Cleaners, Inc. and Jack Alquist
(collectively, “Guild”) asserted defenses, including unclean
hands, to all five causes of action and filed counterclaims
against the City alleging that the City had contributed to
the contamination for which it sought joint and several
injunctive relief.

In Fall 2001, the City, in the name of “the People,”
moved for preliminary injunctive relief against Guild.
That motion’s prayer for relief stated: “the State requests
this Court ... issue the preliminary injunction.... ” On
December 14, 2001, the district court verbally indicated
that it intended to grant an injunction to the State, took
the matter under submission, and ordered further briefing
on the scope and form of an order for preliminary injunc-
tive relief. The hearing on the scope and form of the
injunction was set for January 25, 2002.

Just prior to the January 25 hearing, the court re-
ceived a joint letter from the California Department of
Toxic Substances Control (““DTSC”) and the California
Regional Water Quality Control Board (the “Regional

3

Board”), State agencies with jurisdiction over environ-
mental issues. The letter declared that the district court
had no jurisdiction over the DTSC and the Regional Board
and therefore could not bind the agencies in any prelimi-
nary injunction order.’ In response, the district court
continued the hearing on the form and scope of the order,
and instead held a hearing on January 25, 2002, to deter-
mine whether the State was a party to the litigation.
Following that hearing, the district court asked the parties
and amicus curiae’ to brief the issues fully.

On May 3, 2002, following further briefing and an-
other full hearing in which the parties, the California
Attorney General, and counsel for the State agencies
participated, the court issued an interlocutory order, which
asked: “[W]ho is the plaintiff ‘People of the State of Cali-
fornia? Is it a party separate and distinct from the City
itself?” (Pet. App. 15a.) After engaging in thoughtful
analysis of the arguments presented by all parties and
amicus curiae, the district court answered those questions:

* The agencies stated: “DTSC and the RWQCB are not parties to
the litigation, have not submitted themselves to the jurisdiction of the
court, and have not waived their 11th Amendment immunity. ... The
Preliminary Injunction should not, therefore, contain language that
purports to require, authorize, forbid or otherwise regulate the per-
formance of any actions by DTSC or the RWQCB in the enforcement
and ert ota of proposed cleanup related activities. ...”

* Amicus curiae before the district court are the DTSC, the
Regional Board, and the California Attorney General. No State agency
or agent has appeared in this action and, in fact, the DTSC and the
Regional Board continue to assert that the federal courts have never
obtained jurisdiction over any branch of California’s government in
regard to this case.

ee

4

“[U]nder CCP § 731 the City Attorney in this case has but
one client — the City of Lodi.” (Pet. App. 26a.)

The district court found that the plaintiff “People of
the State of California” could not be distinguished from
the plaintiff “City of Lodi.” Because the court’s determina- |
tion from the bench that injunctive relief was appropriate |
rested in large part upon the court’s understanding that
the party seeking injunctive relief was the innocent State,
and not the potentially liable City, the court withdrew its
December 14, 2001 oral statement regarding its intent to
issue an injunction. (Pet. App. 28a.) The district court then
required supplemental briefing, and reset the hearing on
preliminary injunctive relief for August 9, 2002. (Pet. App.
32a-33a.)

The City appealed the district court’s May 3, 2002
order to the Ninth Circuit Court of Appeals, claiming
interlocutory jurisdiction based on: (1) the “dissolution” of
a preliminary injunction; (2) the collateral order doctrine;
and (3) the argument that the May 3, 2002 order had
effectively sent a party out of court. Guild moved to dis-
miss the appeal, demonstrating that: (1) no preliminary
injunction had ever issued and so could not be dissolved by |
the May 3, 2002 order; (2) the determination of the iden-
tity of a party seeking equitable relief was not collateral,
but was central to the question of that party’s ability to
obtain injunctive relief; and (3) no party had been sent out
of court. Thereafter, the Ninth Circuit dismissed the
appeal for lack of jurisdiction in a one-sentence, unpub-
lished order issued on September 13, 2002.

,

v

AOL TTS

5

REASONS FOR DENYING THE PETITION

A. The Ninth Circuit Properly Dismissed the Ap-
peal Because No Federal Statute Conferred Ju-
risdiction Over the May 3, 2002 Order

“A petition for a writ of certiorari is rarely granted
when the asserted error consists of ... the misapplication
of a properly stated rule of law.” Sup. Ct. R. 10. Whether
the Ninth Circuit properly dismissed the City’s appeal is
solely a question of whether there was a “misapplication of
a properly stated rule of law.” The City never claims that
the Ninth Circuit applied the wrong principles of law or
that incorrect statements of law were presented to that
court. Instead, all the City does is repeat the arguments
about jurisdiction that it made to the Ninth Circuit, the
same arguments that were_rejected by that court when it
dismissed the City’s appeal for lack of jurisdiction.

Further, the Ninth Circuit’s September 13, 2002 order,
from which the City petitions for review, decided only one
issue: whether the Ninth Circuit had jurisdiction for
review of the district court’s May 3, 2002 order. The Ninth
Circuit never reached the merits of the question presented
by the City.

oe = — —

1. The Ninth Circuit’s Order Does Not Deter-
mine Any Question of Federal Law

The City claims that review of the order is necessary
and appropriate because “The Ninth Circuit’s dismissal of
the People’s appeal decides an important question of
federal law in a way that conflicts with other appellate
court decisions.” (Cert. Pet., at 5 (emphasis added).)
However, the City never identifies an important question

a Se

6
of federal law “decided by” the Ninth Circuit’s one-
sentence order.

2. The Ninth Circuit’s Order Does Not Conflict
with the Precedents of Any Other Circuit |

Although claiming there is some split among the
circuit courts justifying review of this undefined federal
issue, the City never cites a single case from any circuit
court, including the Ninth Circuit, that conflicts with the
law presented to the Ninth Circuit to support dismissal of
ca the appeal for lack of jurisdiction. |

In fact, the Ninth Circuit’s one-sentence order dis-
missing the case for lack of jurisdiction never addressed or |
stated the law governing federal appellate court jurisdic-
tion and was not published. It is hard to imagine that any |
federal appellate court, including the Ninth Circuit,* would |
ever cite to, reference, or rely upon the Ninth Circuit's |
order. |

3. The Collateral Order Doctrine Did Not Con-
fer Jurisdiction Upon the Ninth Circuit Be-
cause the Appealed Order Determined an |
Issue Central to the Determination of Equi-
table Relief, i.e., the Identity of the Plaintiff |
Seeking Relief |

The collateral order doctrine is a limited exception \
to the final judgment rule. This doctrine is narrowly

* “Unpublished ... orders of [the Ninth Circuit Court of Appeals]
may not be cited to or by the courts of this circuit. ...” Ninth Cir. R. 36-
3(b).

7

interpreted, so that the exception “never be allowed to
swallow the general rule” requiring a final decision of a
district court as a prerequisite to jurisdiction in an inter-
mediate appellate court. Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 867 (1994).

The collateral order doctrine applies to “that small
class [of decisions] which finally determine claims of right
separable from, and collateral to, rights asserted in the
action, too important to be denied review and too inde-
pendent of the cause itself to require that appellate con-
sideration be deferred until the whole case is adjudicated.”
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949) (emphasis added). Thus, an order is collateral only
if it conclusively determines a disputed question, resolves
an important issue, which is completely separate from the
merits of the case, and is effectively unreviewable upon
appeal from a final judgment. Jd. The district court’s May
3, 2002 order does not meet this test.

a. The Issue Resolved in the District Court’s
May 3, 2002 Order Is Inseparable from the
Merits of Injunctive Relief

An order is separable under the collateral order
doctrine when it is “too independent of the cause itself to
require that appellate consideration be deferred until the
whole case is adjudicated.” Cohen, 337 U.S. at 546. An
order generally is not separable if review would require
appellate courts to become “enmeshed in the factual and
legal issues comprising the plaintiff’s cause of action.”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1981)
(quoting Mercantile Nat'l Bank v. Langdeau, 371 U.S. 555,
558 (1963)).

8

In order to obtain injunctive relief, the plaintiff must
demonstrate that it is likely to prevail on the merits of its
claims, i.e., that it has a clear chance of demonstrating its
right to relief. “The plaintiff’s burden of showing a likeli-
hood of success on the merits includes the burden of
showing a likelihood that it would prevail against any
affirmative defenses raised by the defendant.” Dr. Seuss
Enter, L.P. v. Penguin Books, 924 F. Supp. 1559, 1562
(S.D. Cal. 1996), aff’d, 109 F.3d 1394 (9th Cir. 1997); see
also Falls City Indus., Inc. v. Vanco Beverage, Inc., 460
U.S. 428, 435 (1983) (recognizing affirmative defenses may
affect plaintiff’s showing of likelihood of success on the
merits).° This is an inherent requirement of the plaintiff’s
burden to demonstrate likelihood of success on the merits,
for the plaintiff is not likely to succeed on the merits if the
defendant’s affirmative defenses would prevent the court
from granting equitable relief.

==

The district court’s May 3, 2002 order held that the
City of Lodi is the real party in interest seeking injunctive
relief in the name of the People of the State of California.
(Pet. App. 26a-27a.) Guild’s answer to the plaintiff’s |
complaint contains 35 affirmative defenses, including

* See also Division 580, Amalgamated Transit Union v. Central
N.Y. Reg’l Transit Auth., 556 F.2d 659, 663-64 (2d Cir. 1977)}(upholding
district court’s denial of injunctive relief due to application of defense of
waiver); Feliciano v. Gaztambide, 836 F.2d 1, 2 (1st Cir. 1987) (recogniz-
ing role of affirmative defenses in showing for preliminary injunctive
relief); H.H. Robertson, Co. v. United Steel Deck, Inc., 820 F.2d 384, 388
(Fed. Cir. 1987) (“[T]he burden is always on the movant to demonstrate
entitlement to preliminary relief. Such entitlement, however, is \
determined ir the context of the presumptions and burdens that would
inhere at trial on the merits.”), overruled on other grounds, Markman v.
Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995).

|
|
|
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|

sinensis iia)

9

several equitable affirmative defenses directly affecting
the merits of the City’s claims for injunctive relief, such as
unclean hands, and, most notably, the impropriety of the
City’s attempts to avail itself of the sovereign authority of
the State of California.

Guild’s unclean hands defense and its counterclaims
are based on the City’s negligent maintenance of its sewer
system, chemical dumping by City employees, and instal-
lation of a monitoring well and operation of a water supply
system in a manner exacerbating existing contamination.
Because no one has accused the State of California of
contributing to the contamination in the City of Lodi, by
purporting to represent the State (or some other nebulous,
never-before-recognized “virtual” party it calls “the Peo-
ple”), the City effectively shielded itself from any equitable
defense.

These defenses demonstrate how the issues addressed
in the May 3 order are inseparable from the merits of the
City’s claims. The May 3 order determined that the City
could not cloak itself in the sovereignty of the State of
California, that in fact the City was the party seeking
injunctive relief. In effect, the district court determined
that Guild’s affirmative defenses had merit and should be
considered in assessing equitable relief.

The susceptibility of a party seeking a preliminary
injunction to equitable defenses that preclude a grant of
injunctive relief directly impacts the adjudication of the
underlying claims for equitable relief. Even the City
recognizes that the determination of the identity of the
party seeking equitable relief is inseparable from the
merits of the determination of injunctive relief: “As an
equitably innocent party against whom no counterclaims

a 10

have been asserted, the People’s ability to obtain injunc-
tive relief and to impose joint and several liability was
unquestioned. That is not necessarily so for the City of
Lodi however.” (Cert. Pet., at 6 n.1.)

The determination of the identity of a party seeking
equitable relief is in no way, in the language of Cohen, 337
U.S. at 546, “independent of the cause itself.” Rather, to
review this determination, the Ninth Circuit necessarily
would have become “enmeshed in the factual and legal
issues” surrounding the City’s claims for injunctive relief.
Coopers & Lybrand, 437 U.S. at~469. Thus, the district
court’s May 3, 2002 order determining the identity of the
party seeking equitable relief is not separable, not collat-
eral, and not immediately appealable.

b. The Collateral Order Doctrine Did Not
Confer Jurisdiction on the Ninth Circuit
Because the District Court’s Order Was
Effectively Reviewable Absent Immediate
Appeal

An order is effectively unreviewable absent immediate
appeal only if lack of immediate appeal would destroy the
legal and practical value of an asserted right, “where
denial of immediate review would render impossible any
review whatsoever.” Firestone Tire & Rubber Co. v. Ris-
Jord, 449 U.S. 368, 377 (1981) (quoting United States v.
MacDonald, 435 U.S. 850, 860 (1978)); United States v.
Ryan, 402 U.S. 530, 533 (1971)).

Considering, however, that the issue of the real party
in interest on the “People’s” injunctive claims is currently
pending before the Ninth Circuit Court of Appeals, any

ee

11

claim that the May 3, 2002 order was effectively unre-
viewable absent immediate appeal is demonstrably false.

4. The May 3, 2002 Order Did Not Send a Party
Out of Court: “The People’s” Motion for In-
junctive Relief Has Since Been Granted by
the District Court

The City argues that the “Plaintiff People of the State
of California” was effectively “sent out of court” by the May
3 order. The City seems to be referring to a practical
interpretation sometimes given to the final judgment rule
of 28 U.S.C. section 1291. But a “final decision” is one that
“ends the litigation on its merits and leaves nothing for
the court to do but execute the judgment.” Catlin v. United
States, 324 U.S. 229, 233 (1945).

The cases cited by the City fit squarely within this
definition. See Wakefield v. Thompson, 177 F.3d 1160,
1162-63 (9th Cir. 1999); Ramirez v. Fox Television Station,
Inc., 998 F.2d 743, 746-47 (9th Cir. 1993); United States v.
Lee, 786 F.2d 951, 956 (9th Cir. 1986); Herrington v.
County of Sonoma, 706 F.2d 938, 939 (9th Cir. 1983). In
each of those cases, an order of dismissal effectively
removed both a party and all of that party’s claims from
federal court without possibility of pursuing the claims or
challenging an order absent immediate appeal. That is not
the situation before this Court.

After the City conceded below that it did not represent
the State, the district court made a determination that the
party who had pursued injunctive relief was in fact the
City of Lodi rather than an amorphous “all of the People of
the State of California,” an entity, which, according to the
City, is neither the City of Lodi nor the State of California.

a a

12

(Pet. App. 18a.) But the district court did not dismiss any
claim in the action based on its determination of the real
party in interest, nor did it even require the City to for-
mally substitute itself as the party pursuing injunctive
relief. The court merely corrected its earlier misapprehen-
sion that the party identified in the case caption, “the
People of the State of California,” was the State of Califor-
nia. In fact, on December 31, 2002, with full knowledge
that the moving party on preliminary injunctive relief,
captioned as “the People of the State of California,” was
the City of Lodi, the district court granted the preliminary
injunctive relief sought by the City.°

And while the City claims that the Ninth Circuit’s
dismissal effectively sent “the People” out of court, the
City ignores that there are other public prosecutors who
can intervene in this action or who can take independent
action to vindicate the rights of California’s public at large,
any of whom also can prosecute the action in the name of
“the People of the State of California.” In fact, as demon-
strated by the California agencies’ communication to the
parties,’ the State of California, including California’s
Attorney General, are well aware of the proceedings in

* It is surprising that the City continues to assert that a party has
been sent out of court, for that effectively concedes that no party before
the district court can enforce the injunctive relief so recently awarded to
“the Pearis *

" See supra note 2 and accompanying text. Following issuance of
the district court’s May 3, 2002 order, the Regional Board again
communicated with the district court, assuring the court that that
agency was actively monitoring the progress of cleanup efforts in Lodi
and could and would issue cleanup orders if any potentially responsible
party, including the City, was not appropriately and voluntarily
participating in cleanup efforts.

13

this matter and, if any agent of California determines that
urgent action is necessary, he or she can, and will, repre-
sent “the People,” either in the district court, through
intervention, or in another forum.

The City is currently and actively pursuing perma-
nent injunctive and monetary relief in the district court,
on the same claims and allegations upon which it initiated
this litigation. The May 3 order was issued as an integral
but preliminary part of the on-going proceedings. Thus,
the City’s claim that the final judgment rule or any of its
interpretations conferred jurisdiction upon the Ninth
Circuit is facially absurd.

B. This Court Should Deny the City’s Petition for a
Writ of Certiorari Because the Order Appealed
from Is Interlocutory

“(T]his court should not issue a writ of certiorari to
review a decree of the circuit court of appeals on appeal
from an interlocutory order, unless it is necessary to
prevent extraordinary inconvenience and embarrassment
in the conduct of the cause.” Amer. Constr. Co. v. Jackson-
ville, T:&K.W. Ry. Co., 148 U.S. 372, 384 (1893). “[E]xcept
in extraordinary cases, the writ is not issued until final
decree.” Harnilton-Brown Shoe Co. v. Wolf Bros. & Co., 240
U.S. 251, 258 (1918). The lack of a final judgment is alone
“sufficient ground for the denial of the application” for
certiorari review. Id.; see also Bhd. of Locomotive Firemen
v. Bangor & Aroostock R. Co., 389 U.S. 327, 328 (1967)
(finding a case remanded by the circuit court was not ripe
for review by the U.S. Supreme Court).

To date, the City of Lodi has initiated four interlocu-
tory appeals to the Ninth Circuit Court of Appeals. Trial in

14

this matter is not slated to begin until September 22,
2003. All the Ninth Circuit was asked to do was reverse
the district court’s determination that the City of Lodi was
the real party in interest and “reinstate” preliminary
injunctive relief’ that the City contended had been
granted by the district court. Under any outcome at the
Ninth Circuit, dismissal for lack of jurisdiction, or consid-
eration upon the merits and affirmance or reversal of the
district court’s order, the underlying action would have
continued to trial on the merits and ultimate determina-
tion of the rights of the parties. There is no better example
of an interlocutory order than the order the City asks this
Court to review.

C. Reviewing the District Court’s Order Would
Require this Court to Review a Fact-Specific
Order Interpreting State Law, Although the
Same Order Has Not Been Previously Reviewed
in Any State or Federal Court and the Same Is-
sues Are Currently Before the Ninth Circuit
Court of Appeals for Review on the Merits

The only conceivable federal question presented by
the City is whether “the People,” as defined by the City,
is a real party in interest under Federal Rule of Civil

* At the Ninth Circuit, the City cited 28 U.S.C. section 1291(a\1)
as the basis for the Ninth Circuit’s jurisdiction. Guild moved for
dismissal citing the only order entered after hearing on the City’s
motion for preliminary injunction, which reflected that the district
court had taken the matter under submission, but had not ruled on the
motion. The City has apparently abandoned its argument that the May
3, 2002 order conferred jurisdiction upon the Ninth Circuit under 28
U.S.C. section 1291(a)(1).

15

Procedure 17(a). However, as the City concedes, that
determination is made under the “relevant substantive
law,” federal or state, that gives rise to the cause of action.
(Cert. Pet., at 5.) The City seeks injunctive relief only
under state nuisance law. Thus, the resolution of the
issues involved in the City’s petition for review requires
interpretation of state law. A brief review of the City’s
Table of Authorities, which cites 68 sections of California
law, but only three sections of federal law and one federal
rule, demonstrates the state-law nature of the determina-
tions at issue.

1. The District Court’s Order Relied Upon Fact-
Specific Determinations of the Actions and
Motivations of the City of Lodi in Presenting
Itself as the State of California

“A petition for writ of certiorari is rarely granted when
the asserted error consists of erroneous factual find-
ings.... ” Sup. Ct. R. 10. The issue determined by the
district court’s May 3, 2002 order was whether the plain-
tiff “People of the State of California” was an entity sepa-
rate and distinct from the City of Lodi, based upon a
review of both state law and the facts before the district
court. The City conceded that it did not represent the
State of California and proposed instead that it repre-
sented “all of the People of the State of California.” The
district court framed the issue:

(WJhen suit is brought under [California Code of
Civil Procedure section] 731 “in the name of the
people of the State of California,” there are only
two possible conclusions: (1) the plaintiff is the
city which the city attorney represents or (2) the
plaintiff is the State of California (a position no

16

one urges herein). Nevertheless, the Plaintiff
People assert a third option — that the plaintiff is
simply “all of the people” in the State (separate
and apart from the State and the City of Lodi).

(Order, Pet. App. 25a.)

In determining that the City’s position was without
merit, the district court relied on the following factual
findings:

¢ The City Council of Lodi, not the people of
California, directed the filing of the action.

¢ The City, not the people of California, financed
the litigation.

¢ The City, not the people of California, directed
the litigation.

* Any counterclaims asserted against the “Peo-
ple” would in fact be claims against the City,
particularly since service would be effected
upon the City.

* Any award of damages, costs or sanctions
against “the People” would be paid by the City.

¢ Any award of injunctive relief would bind the
City and not the “people of California.”

These findings were predicated upon voluminous
evidence presented to the district court and oral testimony
of the City’s attorneys during hearing on the matter. Any
review by this Court would necessarily enmesh the Court

* See Petitioner’s Appendix at 25a-26a for the district court’s
findings.

17

in a determination of whether the factual findings made
by the district court were accurate and were sufficient to
support a determination that the City of Lodi — not some
fictional, innocent party — sought injunctive relief.

2. The City Has Requested Review of a State
Law Determination Before the Ninth Circuit
Court of Appeals Has Considered this Issue
on Its Merits

Ordinarily, this Court “accepts” and therefore does not
review “save in exceptional cases, the considered determi-
nation of questions of state law by the intermediate
federal appellate courts.” Huddleston v. Dwyer, 322 U.S.
232, 237 (1944). Although this Court clearly has the
authority to review state-law determinations by lower
federal courts, in the vast majority of cases this Court
declines to do so because: “The federal judges who deal
regularly with questions of state law in their respective
districts and circuits are in a better position than we [this
Court] to determine how local courts would dispose of
comparable issues.” Butner v. United States, 440 U.S. 48,
57-58 (1979); see also The Wharf (Holdings) Ltd. v. United
Int'l Holdings, Inc., 532 U.S. 588, 596 (2001) (“[Wle ordi-
narily will not consider such a state-law issue, and ' we
decline to do so here.”).

The May 3, 2002 order of the district court represents
an analysis of California law in a situation of first impres-
sion — the attempt by a municipal corporation to use
California Code of Civil Procedure section 731 to avoid
equitable defenses by claiming to represent “the state
sovereign,” an entity that the City concedes is not the
State of California but contends is not the City of Lodi.

18

The Ninth Circuit’s only comment on the appeal did
not reach the merits — instead it properly dismissed the
appeal as a premature attempt to invoke appellate juris-
diction. However, in the period following the Ninth Cir-
cuit’s dismissal-ef the City’s appeal of the May 3, 2002
order, the district court issued two orders on the City’s two
separate motions for preliminary injunctive relief. One
motion was granted, the other denied. The City has
appealed the denial of one of its motions and has raised as
an issue to the Ninth Circuit: “Who is the ‘real party in
interest’ pursuant to Federal Rule of Civil Procedure 17(a)
for the People of the State of California’s public nuisance
abatement claims?”

Thus, the City requests review by this Court of a
question that has never been addressed by any intermedi-
ate federal appellate court and is currently before the only
federal appellate court likely to consider this question of
interpretation of California law — the Ninth Circuit Court
of Appeals. Review by this Court prior to analysis by the
Ninth Circuit would deprive this Court of the benefit of
additional analysis that might aid the determination of
the merits.

3. No Lower Court Has Acted in Any Fashion
Requiring this Court to Invoke Its Supervi-
sory Powers

The City claims that the district court’s May 3, 2002
order represents “such a departure from the accepted and
usual course of judicial proceedings ... as to call for an

19

exercise of this Court’s supervisory power.””’ (Cert. Pet., at
8.) The City then proceeds to analyze the issue as a matter
of erroneous interpretation of state law. The City does not
dispute the district court’s jurisdiction over the parties.
The City does not dispute the authority of the district
court to analyze and interpret a state-law issue properly
before it, particularly in the absence of any on-point
opinion from any California court. The City does not claim
that the-district court deprived it of notice and an oppor-
tunity to be heard on the issues. The City does not claim
any error on the part of the district court, except that the
City disagrees with the conclusions reached by that court’s
May 3, 2002 opinion. How any of this rises to the level of a
departure from “the accepted and usual course of judicial
proceedings” that is so significant as to require interven-
tion by the highest Court in the United States is unclear.

Generally, invocation of this Court’s supervisory power
is indicated when a lower federal court acts outside of its
power or jurisdiction or misconstrues federal procedural
rules. See, e.g., Grupo Mexicano de DeSarrollo S.A. v.
Alliance Bond Fund, Inc., 527 U.S. 308 (1999) (power to
issue preliminary injunction-te—prevent- asset transfer
where plaintiff did not claim lien or equitable interest);
Thermtron Products v. Hermansdorfer, 423 U.S. 336
(1976) (district courts’ authority to remand diversity cases
for reasons other than those expressed by statute); Bruner
v. United States, 343 U.S. 112 (1952) (jurisdiction of lower
federal courts over specific statutory claims). Here, the
district court’s May 3, 2002 order was a sub-part of the

° Sup. Ct. R. 10(a).

a

20

court’s consideration of a routine motion for injunctive
relief.

No one has contended that the district court lacked
the power or jurisdiction to clarify the identity of the party
seeking injunctive relief. And while the district court cited
Federal Rule of Civil Procedure 17(a), that court properly
identified the real party in interest by analyzing the state
law governing the substantive right to relief. The applica-
tion of state law to the identification of parties does not
justify the exercise of this Court’s supervisory power.

D. The District Court’s May 3, 2002 Order Was a
Valid Interpretation of State Law

The City’s petition for a writ of certiorari focuses on
the perceived errors in the district court’s analysis. Al-
though citing a great deal of California case law in support
of its position, the City misses two crucial points.

First, the City fails to acknowledge that it conceded
that it did not represent the State, but argued that as “the
People,” it did not represent the City, either. None of the
cases cited by the City support the proposition that there
is a third, amorphous entity, neither City nor State, that
can be represented by a public prosecutor under California
Code of Civil Procedure section 731.

Second, there is no precedent, cited or otherwise, for
use by a public prosecutor of California nuisance law to
shield his or her municipality from potential liability for
contributing to the very nuisance it asks the court to abate
by taking on the equitably innocent mantle of “the People.
This was a case of first impression, not surprisingly, and
the district court used pertinent California precedent to

21

determine what California courts would decide in the
same circumstances.

Faced with an issue of first impression under Califor-
nia law, the district court thoughtfully and appropriately
analyzed the precedent presented and the arguments of
the parties and amicus curiae, and reached a decision on
the merits that was consistent with all published decisions
of California courts. If a novel interpretation of state law is
what the City seeks, its arguments should be squarely
presented to state courts.

E. The City’s Petition for a Writ of Certiorari
Contains Legal and Factual Misstatements Bear-
ing on the Issues Properly Before the Court if
Certiorari Is Granted

Under Supreme Court Rule 15, an opposition to a
petition for writ of certiorari “should address any per-
ceived misstatement of fact or law in the petition that
bears on what issues properly would be before the Court if
certiorari were granted.” Sup. Ct. R. 15.2. Honoring that
rule, Guild identifies the following list of factual mis-
statements in the petition. Guild notes that the common
feature of the listed misstatements is that, although they
are presented in the Petition as conclusions of fact, they
actually represent hotly contested and unresolved issues
that will not be decided before the September 2003 trial. If
this Court accepts review, it will necessarily be enmeshed
in the considerable quantity of evidence and argument
regarding these points.

* There is a significant dispute over whether
the City has resolved its liability for contribu-
tion to the contamination at issue by entering

22

a settlement agreement with only one state
agency and whether, in any event, settlement
of liability equates to equitable innocence.

* The City states, as if it has been proven, that
Defendant Guild Cleaners, Inc. is “at the cen-
ter of and primarily responsible for the con-
tamination.” Guild in fact strongly contests its
alleged liability. Further, there are many other
parties, including the City, whose contribu-
tions to the contamination are at issue and
much of the contamination in the City of Lodi
is found in locations distant from the Guild fa-
cility.

* The “hot spot”” of contamination referenced
by the City is not, in fact, “next to” the Guild
facility. The “hot spot” is located approxi-
mately 80 feet to the west of Guild Cleaners,
Inc., directly south of a property formerly used
as a newspaper printing facility that used and
disposed of the contaminants at issue. Follow-
ing extensive discovery among the more than
100 parties, the relative liability of Guild, the
City, the newspaper and others will be the
subject of trial.

¢ Although the City claims that the City Coun-
cil directed the City Attorney to bring public
nuisance claims against the defendants below,

“ “Hot spot” is a term coined by the City. Its exact meaning is
unclear, and so the existence of a “hot spot” is also an issue of conten-
tion below. :

23

nothing in the record has ever demonstrated
any such direction by the City Council.

¢

CONCLUSION

The City of Lodi has attempted to invoke the jurisdic-
tion of this Court over an interlocutory order analyzing a
combination of facts and state law that has never been
ruled upon by any California or federal court other than
the district court below. Further, the issue is wholly one of
California law that will impact only parties in California.
For these reasons, and because the issue is currently
pending before the Ninth Circuit, the City’s petition for a
writ of certiorari should be denied.

Respectfully submitted,

RHONDA CATE CANBY,
Counsel of Record
STEPHEN J. MEYER
STEVEN H. GOLDBERG
JEAN M. HOBLER
DOWNEY BRAND SEYMOUR
& ROHWER
LORI J. GUALCO
LAW OFFICES OF LORI J. GUALCO

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1036%3A2. Public record. Not legal advice.