You are on page 1of 59

Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 1 of 59

Case Nos. 16-55239 & 16-55984

In the United States Court of Appeals


for the Ninth Circuit

WAYNE WILLIAM WRIGHT,


Plaintiff-Appellant,
v.
CHARLES L. BECK, et al.,
Defendants-Appellees.

On Appeal from the United States District Court


for the Central District of California
(CV 15-05805-R-PJW)

APPELLANTS OPENING BRIEF

C. D. Michel
Joshua R. Dale
Scott M. Franklin
Anna M. Barvir
MICHEL & ASSOCIATES, P.C.
180 East Ocean Blvd., Suite 200
Long Beach, CA 90802
Telephone: (562) 216-4444
Facsimile: (562) 216-4445
E-mail: cmichel@michellawyers.com
Counsel for Plaintiff-Appellant
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 2 of 59

TABLE OF CONTENTS
Page

TABLE OF CONTENTS ..................................................................................................... i


TABLE OF AUTHORITIES ............................................................................................. iv
JURISDICTIONAL STATEMENT ................................................................................... 1
STATEMENT REGARDING ADDENDUM ................................................................ 1
STATEMENT OF THE ISSUES PRESENTED ............................................................ 2
STATEMENT OF THE CASE .......................................................................................... 2
I. Factual Background .................................................................................................... 2
A. The LAPD Arrests Wright and Seizes His Firearms Collection ............... 3
B. Wrights Plea Agreement with the Ventura County District Attorney..... 4
C. Wrights November 2006 Motion for Return of Firearms and Non-
firearm Property .............................................................................................. 4
D. Wrights 2011 Motion for Return of Property and the Ventura Courts
Oral Decision to Withhold Ruling on All But 26 Firearms ....................... 5
E. Three Years of Conduct in Compliance with the Ventura Judges Oral
Instructions ...................................................................................................... 6
F. The City Disregards the 2011 Written Order and (Allegedly) Destroys
the Remaining Firearms in Secret.................................................................. 8
II. Procedural History and Rulings on Review ............................................................. 8
A. The Citys Motion to Dismiss ........................................................................ 8

B. Wrights Motion for Indicative Ruling ....................................................... 10


SUMMARY OF ARGUMENT ......................................................................................... 11
ARGUMENT ....................................................................................................................... 12
I. Standard of Review ................................................................................................... 12
i
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 3 of 59

A. The Court Reviews a Dismissal for Failure to State a Claim De Novo . 12


B. The Court Reviews the Denial of Motions for Indicative Ruling and
for Relief from Judgment for Abuse of Discretion, but Reviews Legal
Determinations Underlying Those Decisions De Novo .......................... 13
II. The Court Should Reverse the Dismissal of Wrights Claims............................. 14
A. The District Court Wrongly Held that Res Judicata Precluded
Wrights Lawsuit ............................................................................................ 14
1. Claim Preclusion Does Not Apply Because Wrights Federal
Claims Do Not Involve Identical Claims Between Identical
Parties Previously Litigated to a Final Judgment ........................... 15
a. Wrights Federal Claims Are Not Identical to Any
Claims Previously Litigated in State Court .......................... 16
b. Wrights Federal Claims Do Not Involve Identical
Parties or Their Privies .......................................................... 18
c. Wrights Federal Claims Do Not Attempt to Relitigate
Claims Subject to a Previous Final Judgment on the
Merits ....................................................................................... 20

2. Issue Preclusion Does Not Apply Because Wrights State-Court


Motion for Return of Property Did Not Result in a Final
Judgment as to Any Issue Common to His Federal Action ......... 22
a. The Ventura Court Could Not Have Entered a Final
Judgment as to Wrights Ownership Interest in the
Remaining Firearms Because It Lacked Jurisdiction to
Do So ....................................................................................... 24
b. The Ventura Court Did Not Enter a Final Judgment as to
Wrights Possessory or Ownership Interest in the
Remaining Firearms; the District Courts Reliance on
Implied Findings to Rule Otherwise Was Improper ..... 25
i. The District Court Improperly Inferred an Implied
Finding that Was Not Necessary to the 2011
Written Order .............................................................. 26
ii. The District Court Improperly Inferred and Relied
on an Implied Finding that Conflicts with Both the
Undisputed Record and Reason ............................... 29
ii
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 4 of 59

B. This Court Should Reverse the Dismissal Because the District Court
Either Wrongly Ignored Well-pleaded Facts or Made a Finding of
Fact Made Prematurely ................................................................................. 32
1. The District Courts Refusal to Recognize Well-pleaded Factual
Allegations Was Plain Error ............................................................. 33
2. To the Extent the District Court Made a Factual Finding at the
Pleading Stage, It Committed Reversible Error ............................. 35
C. The District Court Violated Wrights Due Process Rights by Ruling
on a Late-raised Argument to Which Wright Had No Opportunity to
Respond .......................................................................................................... 37
III. This Court Should Reverse the Denial of Wrights Indicative Ruling Motion
as It Was Dependent on the Legal Errors Discussed Above .............................. 42
CONCLUSION ................................................................................................................... 44
STATEMENT OF RELATED CASES ........................................................................... 44

iii
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 5 of 59

TABLE OF AUTHORITIES
Page(s)

Federal Cases
Akin v. PAFEC Lmtd.,
991 F.2d 1550 (11th Cir. 1993)................................................................................ 20
Ascon Props., Inc. v. Mobil Oil Co.,
866 F.2d 1149 (9th Cir. 1989).................................................................................. 12
Ashcroft v. Iqbal,
556 U.S. 662 (2009)................................................................................................... 34
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)................................................................................................... 34
Benson v. JP Morgan Chase Bank, N.A.,
673 F.3d 1207 (9th Cir. 2012).................................................................................. 13
Cacoperdo v. Demosthenes,
37 F.3d 504 (9th Cir. 1994) ...................................................................................... 39
Cahill v. Lib. Mut. Ins. Co.,
80 F.3d 336 (9th Cir. 1996) ...................................................................................... 32
Cal. Sportfishing Prot. All. v. Pac. States Indus., Inc.,
No. 15-CV-01482-JD, 2015 WL 5569073 (N.D. Cal. Sept. 22, 2015) ............... 38
Catlin v. United States,
324 U.S. 229 (1945)..................................................................................................... 1
Cook, Perkiss & Liehe, Inc. v. N. Cal. Coll. Serv. Inc.,
911 F.2d 242 (9th Cir. 1990) ................................................................. 12, 13, 32, 35
Erickson v. Pardus,
551 U.S. 89 (2007) ..................................................................................................... 32
Guillory v. Cnty. of Orange,
731 F.2d 1379 (9th Cir. 1984).................................................................................. 12
Hishon v. King & Spalding,
467 U.S. 69 (1984) ..................................................................................................... 13

iv
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 6 of 59

Hughes v. Rowe,
449 U.S. 5 (1980) ................................................................................................. 33, 36
In re DiSalvo,
219 F.3d 1035 (9th Cir. 2000).................................................................................. 19
In re Seizure of Approx. 28 Grams of Marijuana,
278 F. Supp. 2d 1097 (N.D. Cal. 2003) .................................................................. 19
Latshaw v. Trainer Wortham & Co.,
452 F.3d 1097 (9th Cir. 2006).................................................................................. 13
Lawlor v. Natl Screen Serv.,
349 U.S. 322 (1955)................................................................................................... 16
Manzarek v. St. Paul Fire & Marine Ins. Co.,
519 F.3d 1025 (9th Cir. 2008).................................................................................. 33
Mathews v. Eldridge,
424 U.S. 319 (1976)............................................................................................. 37, 41
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574 (1986)................................................................................................... 36
Migra v. Warren City Sch. Dist. Bd. of Educ.,
465 U.S. 75 (1984) ..................................................................................................... 14
Provenz v. Miller,
102 F.3d 1478 (9th Cir. 1996).................................................................................. 39
Seismic Reservoir 2020, Inc. v. Paulsson,
785 F.3d 330 (9th Cir. 2015) .................................................................................... 41
Sherman v. Yahoo! Inc.,
No. 13CV0041, 2015 WL 5604400 (S.D. Cal. Sept. 23, 2015) ............................ 39
Smith v. Pac. Props. & Dev. Corp.,
358 F.3d 1097 (9th Cir. 2004).................................................................................. 13
Snider v. Melindez,
199 F.3d 108 (2d Cir. 1999) ..................................................................................... 40
Somers v. Dig. Realty Tr., Inc.,
119 F. Supp. 3d 1088 (N.D. Cal. 2015) .................................................................. 38

v
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 7 of 59

Sparling v. Hoffman Const. Co., Inc.,


864 F.2d 635 (9th Cir. 1988) .................................................................................... 41
Takahashi v. Bd. of Trustees,
783 F.2d 848 (9th Cir. 1986) .................................................................................... 14
Taylor v. Stugell,
553 U.S. 880 (2008)................................................................................................... 22
United States v. Anderson,
472 F.3d 662 (9th Cir. 2006) .................................................................................... 38
United States v. Asarco Inc.,
430 F.3d 972 (9th Cir. 2005) .................................................................................... 13
United States v. Hinkson,
585 F.3d 1247 (9th Cir. 2009) (en banc) ................................................................ 13
Warren v. Fox Fam. WW, Inc.,
328 F.3d 1136 (9th Cir. 2003).................................................................................. 34
West v. Cate,
No. 11-6791-R, 2015 WL 4498066 (C.D. Cal. July 16, 2015) ............................. 39
Wong v. Bell,
642 F.2d 359 (9th Cir. 1981) .................................................................................... 41
State Cases
Bartel v. Assoc. Dental Supply Co.,
114 Cal. App. 2d 750 (1952) .............................................................................. 28, 30
Boeken v. Philip Morris USA, Inc.,
48 Cal. 4th 788 (2010) .............................................................................................. 16
Cal. State Auto. Assn. Inter-Ins. Bureau v. Brunella,
14 Cal. App. 2d 464 (1936) ...................................................................................... 19
Carden v. Otto,
37 Cal. App. 3d 887 (1974) ..........................................................................18, 19, 20
City of Oakland v. Whipple,
39 Cal. 112 (1870) ............................................................................................... 26, 29
City of San Jose v. Super. Ct. (Dabecic),
195 Cal. App. 3d 743 (1987) .................................................................................... 17
vi
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 8 of 59

Crutcher v. Breck,
No. 271599, 2007 WL 840127 (Mich. Ct. App. Mar. 20, 2007) (per curiam) ... 36
Daar & Newman v. VRL Intl,
129 Cal. App. 4th 482 (2005)................................................................................... 23
DKN Holdings LLC v. Faerber,
61 Cal. 4th 813 (2015) ..................................................................................14, 15, 16
Doudell v. Shoo,
159 Cal. 448 (1911) ................................................................................................... 20
Eichman v. Fotomat Corp.,
147 Cal. App. 3d 1170 (1983) ............................................................................ 16, 18
Ellena v. State of California,
69 Cal. App. 3d 245 (1977) ................................................................................ 29, 30
Ensoniq Corp. v. Super. Ct. (Dattoro),
65 Cal. App. 4th 1537 (1998)............................................................................. passim
Fladeboe v. Am. Isuzu Motors Inc.,
150 Cal. App. 4th 42 (2000) ..................................................................................... 26
Gershenhorn v. Super. Ct. (People),
227 Cal. App. 2d 361 (1964) .................................................................................... 20
Hall v. S.F. Mun. Ct. (McGaskey),
10 Cal. 3d 641 (1974) (en banc)............................................................ 26, 29, 30, 38
In re Crow,
4 Cal. 3d 613 (1971) .................................................................................................. 15
In re Marriage of Paul,
173 Cal. App. 3d 913 (1985). ................................................................................... 28
In re Rathgebs Estate,
125 Cal. 302 (1899) ............................................................................................. 21, 31
Lafayette Morehouse, Inc. v. Chron. Publg Co.,
39 Cal. App. 4th 1379 (1995)................................................................................... 29
Lucido v. Super. Ct. (People),
51 Cal. 3d 335 (1990) ....................................................................................14, 22, 33

vii
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 9 of 59

Mycogen Corp. v. Monsanto Co.,


28 Cal. 4th 888 (2002) ........................................................................................ 14, 15
Oziel v. Super. Ct. (CBS Inc.),
223 Cal. App. 3d 1284 (1990) .................................................................................. 20
People v. Gershenhorn,
225 Cal. App. 2d 122 (1964) .................................................................................... 24
People v. Hopkins,
171 Cal. App. 4th 305 (2009)................................................................................... 24
People v. Icenogle,
164 Cal. App. 3d 620 (1985) .................................................................................... 17
People v. Sims,
32 Cal. 3d 468 (1982) ................................................................................................ 22
Reid v. Moskovitz,
208 Cal. App. 3d 29 (1989) ................................................................................ 29, 30
Richeson v. Helal,
158 Cal. App. 4th 268 (2007)................................................................................... 28
Runyan v. P. Air Industries, Inc.,
2 Cal. 3d 304 (1970) .................................................................................................. 26
Sawyer v. First City Fin. Corp.,
124 Cal. App. 3d 390 (1981) .................................................................................... 16
Sullivan v. Delta Air Lines, Inc.,
15 Cal. 4th 288 (1997) .............................................................................................. 20
Teitelbaum Furs v. Dominion Ins. Co., Ltd.,
58 Cal. 2d 601 (1962) (en banc)............................................................................... 15
Tensor Grp. v. City of Glendale,
14 Cal. App. 4th 154 (1993) ..................................................................................... 18
Verdier v. Verdier,
121 Cal. App. 2d 190 (1953) .................................................................................... 30
Zaragosa v. Craven,
33 Cal. 2d 315 (1949) ................................................................................................ 19

viii
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 10 of 59

Statutes
18 U.S.C. 1961 ..................................................................................................................... 9
28 U.S.C. 1291 ..................................................................................................................... 1
28 U.S.C. 1331 ..................................................................................................................... 1
28 U.S.C. 1367 ..................................................................................................................... 1
42 U.S.C. 1983 ................................................................................................................. 1, 9
Cal. Penal Code 1536 .................................................................................................. 21, 31

Constitutional Provisions
U.S. Cont. amend. V. ........................................................................................................... 37
Rules
C.D. Cal. Civ. R. 7-5............................................................................................................. 39
Fed. R. App. P. 4 .................................................................................................................... 1
Fed. R. Civ. P. 12 ............................................................................................... 32, 34, 36, 41
Fed. R. Civ. P. 56 .................................................................................................................. 36

Fed. R. Civ. P. 60 .................................................................................................................. 42


Fed. R. Civ. P. 62.1 ......................................................................................................... 13, 42
Fed. R. Evid. 1004 ................................................................................................................ 30
Other Authorities
9 Witkin, Cal. Proc. 5th Appeal 355 (2008) ................................................................... 30
Freeman on Judgments, 5th Ed., 2 ................................................................................. 20

ix
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 11 of 59

JURISDICTIONAL STATEMENT
Because this suit arises under the Constitution and laws of the United

States, the district court had original jurisdiction under 28 U.S.C. 1331. E.R. III
237. Because this is a 42 U.S.C. 1983 action, brought to redress the deprivation
of constitutional rights under the color of law, the court also had jurisdiction

under 28 U.S.C. 1343(a)(3). E.R. III 237. Finally, the court had supplemental
jurisdiction over Wrights state claims under 28 U.S.C. 1367. E.R. III 237.
This Court has jurisdiction over Wrights consolidated appeal pursuant to

28 U.S.C. 1291 because the orders on review are appealable final decisions. See
Catlin v. United States, 324 U.S. 229, 233 (1945).
On December 14, 2015, the district court dismissed the entire action. E.R.

I 5-7. Wright filed a Rule 60(a) motion within 28 days, E.R. III 317, and the
district court clarified its dismissal order, which became final on January 14,
2016. E.R. II 64. Wright filed a timely notice of appeal on February 12, 2016,
under Federal Rules of Appellate Procedure, rule 4, subsections (a)(1)(A) and
(a)(4)(vi). E.R. II 17-19. The district court denied Wrights motion for indicative
ruling on June 22, 2016. E.R. I 1-4. On July 11, 2016, Wright filed a timely

appeal. E.R. II 8-10; Fed. R. App. P. 4(a)(1)(A).

STATEMENT REGARDING ADDENDUM


An addendum reproducing relevant constitutional and statutory
provisions is bound with this brief.

1
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 12 of 59

STATEMENT OF THE ISSUES PRESENTED


1. Res judicata is inapplicable absent a prior, final judgment on the
merits of identical claims or issues. The district court held that a state-court
order from a summary proceeding for property return barred Wrights claims

because it included an implied finding resolving a central issue of this dispute.


The record shows no court made such a ruling, and the law establishes no court
could. Did the district court wrongly apply res judicata to Wrights claims?
2. On a motion to dismiss, a court must presume that all factual
allegations in the complaint are true and draw all reasonable inferences in favor
of the non-moving party. It does not, on the pleadings, make factual

determinations. In dismissing Wrights claims, the district court either ignored


Wrights central factual allegations or, considering them, resolved a factual
dispute on the pleadings. Did the district court err?

3. Did the district court abuse its discretion when it denied Wrights
motion for indicative ruling based on the same improper legal analyses it applied
to the issues above?

STATEMENT OF THE CASE

I. FACTUAL BACKGROUND
This appeal stems from the dismissal of Wayne Wrights lawsuit for the
improper withholding and (alleged) destruction of Wrights rare and valuable
firearm collection by the Los Angeles Police Department. The lawsuit named

Los Angeles Police Chief Charles L. Beck, City Attorney Michael N. Feuer,

2
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 13 of 59

Deputy City Attorney Heather Aubry, Lieutenant Richard Tompkins, Detective


James Edwards, and the City of Los Angeles (collectively, the City).

A. The LAPD Arrests Wright and Seizes His Firearms Collection


Over the course of six decades, Wright, a former Glendale Police Officer
and war veteran, had spent hundreds of thousands of dollars to build a
collection of historical firearms. E.R. III 2. By 2004, Wrights collection had

grown to include over 400 firearms, most of which were considered unique,
antique, or otherwise collectible. E.R. III 2-4, 17, 253.
Around that time, Edwards observed Wright and his impressive collection

at a collectors event. E.R. III 240-41. He went undercover, posing as an eager


firearm buyer, and contacted Wright to arrange a sale. E.R. III 240-41. After
inspecting the firearm, Edwards agreed to the purchase. E.R. III. 240-41. But

Wright insisted they complete the transaction through a local firearm dealer as
required by law. E.R. III. 240-41. Edwards agreed, but cajoled Wright into
allowing him to hold onto the firearm as they drove to the dealer to complete

the transfer. E.R. 241. Wright reluctantly agreed, eventually handing the firearm
to Edwards for transport to the dealer. E.R. III 241. LAPD Gun Unit officers
then appeared and arrested Wright. E.R. III 241.

Alleging that Wrights arrest for illegally selling one firearm demonstrated
that he was a gun trafficker, the LAPD obtained a search warrant from the Los
Angeles Superior Court to search Wrights Ventura County property. E.R. III
241-42. Under the warrant, the LAPD confiscated Wrights entire firearm

3
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 14 of 59

collection, as well as ammunition and non-firearm property and documents. E.R.


II 94-95, III 241.

B. Wrights Plea Agreement with the Ventura County District


Attorney
After confiscating Wrights property, the LAPD referred the matter to the

Ventura County District Attorney. E.R. III 241-42. The District Attorney
brought no charges for unlawful firearm transfer. But did cite Wright for
possession of an unregistered rifle. E.R. III 241-42. He ultimately pled to a single

charge for possessing that firearm, and he was sentenced to informal probation.
E.R. II 104, III 242, 249. Wright was, for the duration of his probation,
prohibited from possessing any firearm. The terms of his agreement, however,

authorized the transfer of Wrights firearms from the LAPDs possession to a


local firearm dealer of his choosing. E.R. III 242, 250.

C. Wrights November 2006 Motion for Return of Firearms and


Non-firearm Property
In December 2006, Wright filed a motion in the Ventura County Superior
Court for the release of his firearm and non-firearm property.1 E.R. II 71, 97-

100. The LAPD agreed to the release of all non-firearm property, as well as 28
specific firearms legally registered to Wright. E.R. II 105-08. It opposed the
release of the remaining firearms because, the LAPD alleged, Wright had not

1
Wright originally filed that motion in the Los Angeles Superior Court as
it was the warrant-issuing court. The Los Angeles court rejected the motion for
lack of jurisdiction. E.R. II 71.

4
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 15 of 59

provided proof of ownership. E.R. II 105-08. In January 2007, the Ventura court
ordered the release of Wrights non-firearm property, but continued the hearing

for further discussion about the contested firearms. E.R. II 110, 120, III 250.
The matter was ultimately taken off the calendar, E.R. II 121, while the parties
continued to negotiate the firearms release, E.R. III 250.

Over the next half-decade, Wrights counsel repeatedly contacted LAPD


representatives concerning the property ordered to be released, the property the
LAPD agreed to return, and the status of the review of his documentation. E.R.

III 250-56. Regardless, the LAPD delayed the release of Wrights non-firearm
property for more than a year. E.R. III 250-51, 253. It never returned the 28
firearms it previously agreed to release. E.R. III 251. And it began to require that

Wright produce original receipts and a declaration detailing how he acquired


each firearm before the LAPD would decide whether Wrights proof was
sufficient. E.R. III 252. Nothing seemed enough to compel the LAPD to return
Wrights lawfully owned property.

D. Wrights 2011 Motion for Return of Property and the Ventura


Courts Oral Decision to Withhold Ruling on All But 26
Firearms
Consequently, Wright filed another motion in the Ventura County

Superior Court, seeking the release of his firearms collection, in August 2011.
E.R. II 113-16, III 256-57. Deputy City Attorney Aubry filed an opposition for
the LAPD. E.R. II 119-26. She agreed to the release of 26 specific firearms, but
opposed the release of hundreds of others (the Remaining Firearms) because

5
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 16 of 59

the LAPD had not yet received sufficient proof that Wright lawfully owned
them. E.R. II 123-26. Wright filed a reply, including an affidavit proving

ownership. E.R. II 128-68.


Judge Ryan Wright (the Ventura Judge) heard the motion in September
2011. E.R. III 256. Attorney Joseph Silvoso appeared on behalf of Wright and

Aubry appeared for the LAPD. E.R. II 35-36. Wright and Tompkins were also
present. E.R. II 35-36. At the hearing, the LAPD claimed it needed more time to
review Wrights documentation before it could agree to release the Remaining

Firearms. E.R. II 36. Accordingly, the Ventura Judge orally ordered the LAPD
to return the 26 uncontested firearms, but expressly withheld judgment as to the
issue of the Remaining Firearms. E.R. II 36, III 256. He then instructed the

parties to reconcile the dispute outside of court, but to return if they were unable
to reach a resolution. E.R. II 36, III 256.

E. Three Years of Conduct in Compliance with the Ventura


Judges Oral Instructions
Immediately after the hearing, the parties met in the hallway to discuss the
review of Wrights submitted ownership records. E.R. II 37. Aubry and

Tompkins told Wrights counsel, in the presence of Wright, that they intended to
remain in contact with him while they reviewed the documentation. E.R. II 37.
And they did. E.R. II 38, 48, 72 III 256-60, 265-66.

Contemporaneous with the parties efforts to resolve the ownership


dispute, Aubry prepared a proposed order memorializing the 2011 property-

6
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 17 of 59

return hearing. E.R. II 37. Limited to the 26 specific, uncontested firearms, the
proposed order read:

The Court having received and considered Defendant


Wayne William Wrights Motion to Return Property, the
Opposition of Real Party in Interest Los Angeles Police
Department and Reply thereto, and having heard and considered
the arguments of parties and counsel:
Good cause being shown, IT IS HEREBY ORDERED:

The following twenty-six (26) firearms, identified by item


number, are ordered released to Defendant: . . . .
IT IS SO ORDERED.
E.R. III 171-72. The proposed order did not refer to the Remaining Firearms at

all. E.R. III 171-72. Nor did Aubry or any other LAPD representative suggest
that this omission made the order a dispositive ruling on the Remaining
Firearms. E.R. II 37-38. Because the proposed order was consistent with the

Ventura Judges instructions, and because the parties were working to resolve the
ownership dispute, Wright did not object. E.R. II 37-38. Accordingly, the
Ventura Judge adopted Aubrys draft order on October 17, 2011 (2011 Written

Order). E.R. III 171-72.


For the next several years, Wrights counsel continued negotiating with
the LAPD to resolve the dispute over the Remaining Firearms. E. E.R. II 38, 48,

72 III 256-60, 265-66. LAPD representatives often represented to Wright or his


counseleven as late as 2014that they were receiving Wrights documentation
and would return the firearms once satisfied with the show of proof. E.R. III

7
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 18 of 59

257-58, 260-61, 264-65. The LAPD ultimately returned dozens of firearms not
identified in the 2011 Written Order. E.R. II 72, III 257-58, 264-65.

F. The City Disregards the 2011 Written Order and (Allegedly)


Destroys the Remaining Firearms in Secret
But in December 2013, while the parties were still negotiating the return

of Wrights property, the LAPD surreptitiously filed an ex parte application in


the Los Angeles Superior Court, seeking an order authorizing the destruction of
Wrights collection. E.R. III 245, 260-64. The LAPD made the request without

notice to Wright, his counsel, the Ventura County District Attorney, or the
Ventura County Superior Court. E.R. III 260-62. Without any knowledge of the
procedural history of the firearms in Ventura, the Los Angeles court granted the

Citys application. E.R. III 174.


The City then hid the order from Wright for eight months, never
notifying him of the disposal of his collection. E.R. III 262, 266-67. It was not
until August 2014, in response to Wrights request for an update on the review
of his documents, that the City confessed that the LAPD had destroyed most of
Wrights firearms. E.R. II 52.

II. PROCEDURAL HISTORY AND RULINGS ON REVIEW

A. The Citys Motion to Dismiss


On July 31, 2015, Wright filed a lawsuit in the district court over the
LAPDs improper withholding and (alleged) destruction of his firearms. E.R. III
314. Wrights complaint raised five causes of action: (1) violation of civil rights

8
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 19 of 59

under color of law, 42 U.S.C. 1983; (2) violation of the Racketeer Influenced
and Corrupt Organizations Act, 18 U.S.C. 1961, et seq.; (3) conspiracy to

violate RICO; (4) state-law conversion and trespass to chattels; and (5) state-law
preemption. E.R. III 236-37, 280-81, 270, 286-87, 289-90.
The City filed a motion to dismiss Wrights lawsuit on various grounds,

including the doctrine of res judicata. E.R. II 78-79. In support of dismissal, the
City claimedwithout citationthat the Ventura Judge said that Wright had
no ownership interest in the seized firearms. E.R. II 85. The Citys motion made

this and similar misrepresentations at least a dozen times. E.R. II 57-60, 77-87.
But after Wright clarified that the Ventura Judge had not made such a statement,
E.R. II 72, 75-76 (citing E.R. III 256-57), the City revised history on reply. It

provided nothing supporting its earlier claim about what the Ventura Judge
said. Instead, it arguedfor the first timethat the Ventura Judge had made
an implied finding that Wright had no interest in any firearm not specifically
listed in the 2011 order. E.R. II 67-68. Just days later and without affording
Wright any opportunity to rebut this new argument, the district court cancelled
oral argument and took the matter under submission. E.R. III 316.

On December 14, 2015, the district court granted the Citys motion,
reasoning that:

[Wright]s argument that the state court simply ignored the


hundreds of other guns that were not authorized for return is
not persuasive. When [Wright] brought a motion for the return
of a large number of firearms, and the state court responded that
the [Wright] was only entitled to the return of 26 of those guns,

9
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 20 of 59

it is presumed that the [state] court made such implied findings


as will support [its] judgment.
E.R. I 7. Accordingly, the district court held that the Ventura court had already

determined that Wright had no ownership interest in the Remaining Firearms


and that res judicata barred his claims. E.R. I 6-7. The court dismissed Wrights
federal claims with prejudice, but informed Wright that he was free to take up

his supplemental state claims to state court. E.R. I 64-65. On February 12, 2016,
Wright filed a timely appeal of the courts dismissal order. E.R. II 17-19.

B. Wrights Motion for Indicative Ruling


Wright subsequently filed a motion for an indicative ruling in the district

court pursuant to Federal Rules of Civil Procedure, rule 62.1. E.R. I 1, III 317.
That motion was accompanied by an underlying motion for relief from dismissal
under rule 60, subsections (b) and (d). E.R. I 1-2. Together, Wrights motions

asked the court to decide whether it would, if the case was remanded for that
purpose, vacate the dismissal because the City had wrongfully secured it.
Specifically, Wright complained that the City knowingly misrepresented the

scope of the 2011 Written Order and prejudiced Wright by raising the implied
findings argument for the first time on reply. E.R. II 61-63.
The district court denied Wrights motion on June 6, 2016. E.R. I 1-4.

Without analysis, the court held that rule 60, subsections (b)(1)-(2) and (d)(3) did
not apply. E.R. I 1-2. And, relying largely on its previous interpretation of the
2011 Written Order and its finding that res judicata applied, the court ruled that

10
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 21 of 59

the Citys actions did not warrant reversal under rule 60(b)(3). E.R. I 2-3. Wright
appealed. E.R. II 8-10.

SUMMARY OF ARGUMENT
On a Federal Rule 12(b)(6) motion to dismiss, the court presumes all
factual allegations in the complaint are true. It draws all reasonable inferences in
favor of the non-moving party. And it does not resolve disputes over the facts. In

its rush to dismiss Wrights legitimate claims, the district court below ignored
these well-established principals and greatly (and regrettably) expanded the role
of motions to dismiss on the pleadings.

The district court, citing the doctrine of res judicata, held that Wright
could not prove the element of ownership underlying his federal claims because
another court in another proceeding had implicitly determined that he had no

interest in the subject property. But Wrights complaint is clear. No court had
ever made such a determination. To the contrary, the only court with jurisdiction
over the property had expressly reserved judgment on the issue.

The City chose not to rebut that fact. Instead, it sprinkled subtle-enough
misrepresentations throughout its filings below, tempting the court with a
misleading version of what happened before the Ventura Judge in 2011. That

temptation, it turns out, would get the better of the court. For its adopted a
decision that made little effort to establish that Wrights claims met even
minimal requirements for the application of res judicata. Adding insult to injury,
the court repeatedly erred by misusing the implied finding doctrine to bolster its

11
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 22 of 59

decision, assuming adverse facts from a state-court order that simply were not
there, and giving insufficient weight to Wrights well-pleaded facts at this stage.

The court compounded these errors when it again relied on its improper
analysis from the dismissal ruling to justify its denial of Wrights motion for
indicative ruling, ignoring Wrights counsels declaration as to what the state

court ordered and the Citys express refusal to comment on that issue.

ARGUMENT

I. STANDARD OF REVIEW

A. The Court Reviews a Dismissal for Failure to State a Claim


De Novo
The district court dismissed Wrights lawsuit for failure to state a claim
under Federal Rules of Civil Procedure, rule 12(b)(6). E.R. I 5-7. That decision is
a question of law subject to de novo review. Cook, Perkiss & Liehe, Inc. v. N. Cal.
Coll. Serv. Inc., 911 F.2d 242, 244 (9th Cir. 1990) (citing Guillory v. Cnty. of Orange,
731 F.2d 1379, 1381 (9th Cir. 1984)). On review, the Court accept[s] material
allegations in the complaint as true and construe[s] them in light most favorable

to the non-moving partyhere, Wright. Id. (citing Ascon Props., Inc. v. Mobil Oil
Co., 866 F.2d 1149, 1152 (9th Cir. 1989)). This Court must reverse unless it is
clear that no relief could be granted under any set of facts that could be proved

consistent with the allegation. Id. (quoting Hishon v. King & Spalding, 467 U.S.
69, 73 (1984)).

12
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 23 of 59

B. The Court Reviews the Denial of Motions for Indicative


Ruling and for Relief from Judgment for Abuse of Discretion,
but Reviews Legal Determinations Underlying Those
Decisions De Novo
This Court generally reviews relief from judgment under Federal Rule of
Civil Procedure, rule 60, under the abuse of discretion standard. Benson v. JP
Morgan Chase Bank, N.A., 673 F.3d 1207, 1211 (9th Cir. 2012) (citing Latshaw v.

Trainer Wortham & Co., 452 F.3d 1097, 1100 (9th Cir. 2006)); United States v.
Asarco Inc., 430 F.3d 972, 978 (9th Cir. 2005). The same is true of requests for
indicative ruling. Fed. R. Civ. P. 62.1. A district court, however, never has

discretion to apply the wrong legal standard. Accordingly, whether a denial


rests on an inaccurate view of the law and is therefore an abuse of discretion
requires [the Court] to review the underlying determination de novo. Benson,

673 F.3d at 1211 (quoting Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1100
(9th Cir. 2004) (citation and italicization omitted)).
Even if the district court selects the correct legal standard, it abuses its
discretion if this application of that standard was (1) illogical, (2) implausible, or
(3) without support in inferences that may be drawn from the facts in the
record. United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc).

13
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 24 of 59

II. THE COURT SHOULD REVERSE THE DISMISSAL OF WRIGHTS CLAIMS

A. The District Court Wrongly Held that Res Judicata Precluded


Wrights Lawsuit
Res judicata generally bars relitigating claims and issues previously decided

in a final judgment. Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 896 (2002).2 In
evaluating the preclusive effect of state-court judgments, federal courts apply
state substantive law. Takahashi v. Bd. of Trustees, 783 F.2d 848, 850 (9th Cir.

1986) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)).
Under California law, the doctrine describes two separate, but related, concepts:
(1) Res judicata, or claim preclusion, which prevents relitigation of the same

cause of action in a second suit between the same parties or parties in privity with
them; and (2) collateral estoppel, or issue preclusion, which bars relitigation
of issues argued and decided in prior proceedings. Mycogen, 28 Cal. 4th at 896

(emphasis added) (quoting Lucido v. Super. Ct. (People), 51 Cal. 3d 335, 341
(1990)).
Though its orders were unclear, the district court purports to dismiss

Wrights claims under both aspects of the doctrine of res judicata. See E.R. I 6,

2
In dismissing Wrights lawsuit, the district court referenced both res
judicata and collateral estoppel. E.R. I 6. While res judicata and collateral
estoppel are modernly considered distinct doctrines, California courts regularly
describe collateral estoppel as simply one of two aspects of res judicata. DKN
Holdings LLC v. Faerber, 61 Cal. 4th 813, 823-24 (2015), rehg denied (Aug. 12,
2015) (We have frequently used res judicata as an umbrella term
encompassing both claim preclusion and issue preclusion, which we described as
two separate aspects of an overarching doctrine.). To avoid confusion, this
brief refers the doctrine, in its entirety, as res judicata.

14
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 25 of 59

but see E.R. II 64. Yet nowhere did the trial court provide any analysis supporting
a claim-preclusion-based ruling. See E.R. I 1-7, II 64-65. To the contrary, the

courts January 2016 clarification order suggests that dismissal was based solely
on issue preclusion. E.R. II 64 (Th[is] Court [previously] reasoned that the basis
for Plaintiffs causes of action were necessarily determined by the state Court.)

(emphasis added). Regardless, this Court should reverse the district courts
decision under either theory because Wrights state-court motion did not result
in a final judgment on any sufficiently similar claim or relevant common issue of

fact or law.

1. Claim Preclusion Does Not Apply Because Wrights


Federal Claims Do Not Involve Identical Claims
Between Identical Parties Previously Litigated to a
Final Judgment
Claim preclusion prevents relitigation of the same cause of action in a
second suit between the same parties or parties in privity with them. DKN
Holdings, 61 Cal. 4th at 824 (quoting Mycogen, 28 Cal. 4th at 896). It applies only if
the party asserting claim preclusion establishes that a second suit involves: (1)
the same cause of action (2) between the same parties (3) after a final judgment on

the merits in the first suit. Id. (emphasis added) (citing Mycogen, 28 Cal. 4th at
896; In re Crow, 4 Cal. 3d 613, 622 (1971); Teitelbaum Furs v. Dominion Ins. Co., Ltd.,
58 Cal. 2d 601, 604 (1962) (en banc)). To the extent dismissal rests on claim

preclusion, this case does not meet the three-element test.

15
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 26 of 59

a. Wrights Federal Claims Are Not Identical to Any


Claims Previously Litigated in State Court
[C]laim preclusion applies only to the relitigation of the same cause of

action. DKN Holdings, 61 Cal. 4th at 825. Under California law, for purposes of
res judicata, cause of action refers to the right to obtain redress for a harm
suffered, regardless of the specific theory advanced. Boeken v. Philip Morris USA,

Inc., 48 Cal. 4th 788, 798 (2010). Stated differently, claim preclusion applies, and
a subsequent action barred, when two actions involve the same injury to the
plaintiff and the same wrong by the defendant. Eichman v. Fotomat Corp., 147 Cal.

App. 3d 1170, 1174 (1983) (emphasis added); see also Sawyer v. First City Fin. Corp.,
124 Cal. App. 3d 390, 403 (1981).
Res judicata does not bar a later-raised claim, however, if it is based on

different instances of alleged tortious conducteven if the claims concern the


same subject-matter. Sawyer, 124 Cal. App. 3d at 402-03. Further, if a party could
not have brought the second claim together with the first, the doctrine does not
apply. Eichman, 147 Cal. App. 3d at 1177 (A judgment precludes recovery on
claims arising prior to its entry, [but] it cannot be given the effect of
extinguishing claims which did not even then exist and which could not possibly

have been sued upon in the previous case. ) (quoting Lawlor v. Natl Screen Serv.,
349 U.S. 322, 328 (1955)).
Simply put, Wrights two actions do not involve the same injury. The 2011

motion for the return of property, made in a special proceeding before a

16
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 27 of 59

criminal court,3 is in no way like a civil claim for conversion or any other claim
pleaded in this case. The elements underlying each claim are different, they rely

on distinct questions of law and fact, and they address very different sorts of
harm. Compare E.R. II 115-16, 121-22 (parties 2011 state-court briefing on
legal standards governing property return motions), with E.R. III 270-90 (federal

complaint for Wrights state and federal claims).


Perhaps most importantly, Wrights property-return motion did not seek
to redress any tortious conduct on the part of the LAPDthe body that seized

and took custody of his firearms. E.R. II 113-16. Nor could it have. California
law is clear: criminal court has no jurisdiction to fashion a civil remedy for
damages against the municipality or the police; the motion [for return of

property] procedure is not available for that purpose. City of San Jose v. Super. Ct.
(Dabecic), 195 Cal. App. 3d 743, 747-48 (1987) (discussing People v. Icenogle, 164
Cal. App. 3d 620, 624 (1985)) (emphasis added); see also Ensoniq, 65 Cal. App. 4th
at 1550 ([T]he summary remedy of a motion for return of seized property
cannot be turned into a civil proceeding for conversion.). In other words, the
Ventura Superior Court could not have, through the property return mechanism,

vindicated any tort that Wright might have suffered at the hands of the City.

3
Where, as here, a motion for return of property is brought after the
completion of a criminal proceeding, the matter is a special proceeding . . .
distinct from any underlying litigation. Ensoniq Corp. v. Super. Ct. (Dattoro), 65
Cal. App. 4th 1537, 1547 (1998).

17
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 28 of 59

Whats more, Wright could not have brought the claims making up his
federal action together with those in his state-court motion for return of

property. Indeed, the harm complained of in Wrights federal action arose


primarily from the purported destruction of Wrights property, an act the City
claims to have happened in 2013 or latertwo years after Wright had his

property motion heard. See, e.g., E.R. III 270, 275, 277-79, 280-81, 285-86.
Because the destruction had not occurred by the time of the state proceeding,
Wright could not possibly have sought relief for that harm at that time. Eichman,

147 Cal. App. 3d at 1177; see also Tensor Grp. v. City of Glendale, 14 Cal. App. 4th
154, 160 (1993) (If the matter was within the scope of the action, related to the
subject matter and relevant to the issues, so that it could have been raised, the

[previous] judgment is conclusive on it.).


In short, claim preclusion does not apply.

b. Wrights Federal Claims Do Not Involve


Identical Parties or Their Privies
Claim preclusion operates only as to actions to be litigated among the
same parties or their privies. A person who is neither a party nor privy to a

party to an action is not entitled to claim the benefits of an adjudication upon


any matters decided in the action. Carden v. Otto, 37 Cal. App. 3d 887, 892
(1974). Because the City defendants in this action were neither party nor privy to

Wrights property-return motion, they cannot use claim preclusion as a shield


against Wrights federal claims here.

18
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 29 of 59

A party appearing in an action in one capacity, individual or


representative, is not thereby . . . entitled to the benefits of the rules of res

judicata in a subsequent action in which he appears in another capacity. In re


DiSalvo, 219 F.3d 1035, 1038 (9th Cir. 2000). Though the City participated in
both the state-court proceeding, E.R. II 103-08, 119-26, and this action, it did so

in wildly different capacities. In the state proceedings, the City and its
representatives were not a party at all. They were strictly acting as agents of the
Ventura court. E.R. II 105; see also In re Seizure of Approx. 28 Grams of Marijuana,

278 F. Supp. 2d 1097, 1105-06 (N.D. Cal. 2003). Thus, even assuming there
were adverse parties in that proceeding, those parties were Wright and the
Ventura Superior Court. This is in stark contrast to this action, where the City

parties are named defendants and the Ventura court is not involved at all.
Generally, one is in privity with a party to an action if he is is so
identified in interest with another that he represents the same legal right as the
named party. Id. (emphasis added); see also Zaragosa v. Craven, 33 Cal. 2d 315, 318
(1949) (The term privity denotes mutual or successive relationship to the same
rights or property.) (quoting Cal. State Auto. Assn. Inter-Ins. Bureau v. Brunella, 14

Cal. App. 2d 464, 466 (1936)). No matter how one seeks to characterize the
LAPDs agency relationship with the superior court, it is not in privity with the
Ventura court because it never had any rights as to the disposition of the

Remaining Firearms. For police officers who seize property pursuant to a search
warrant claim[] no right in or to the property, or in or to its possession, save and

19
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 30 of 59

except as the court may find use for it. Oziel v. Super. Ct. (CBS Inc.), 223 Cal.
App. 3d 1284, 1292-93 (1990) (emphasis added); Gershenhorn v. Super. Ct. (People),

227 Cal. App. 2d 361, 366 (1964).


Accordingly, the LAPD cannot be so identified in interest with the
Ventura court because it never represent[ed] the same legal right as the court.

Carden, 37 Cal. App. 3d at 892; accord Akin v. PAFEC Lmtd., 991 F.2d 1550, 1559
(11th Cir. 1993) (holding that because defendant directors rights, duties, and
liability were in no way successive to or mutual with another directors rights,

which had been adjudicated in a previous action; the defendant director was not
entitled to the benefit of res judicata of the basis of privity). Without that unity
of interest, the City lacks privity with the Ventura County Superior Court, and

the City is not entitled to the benefit of claim preclusion.

c. Wrights Federal Claims Do Not Attempt to


Relitigate Claims Subject to a Previous Final
Judgment on the Merits
No hard-and-fast definition of final judgment applicable to all situations

can be given, but generally, [a] judgment is final when it terminates the
litigation between the parties on the merits of the case and leaves nothing to be
done but to enforce by execution what has been determined. Sullivan v. Delta

Air Lines, Inc., 15 Cal. 4th 288, 303-04 (1997) (first quoting Freeman on
Judgments, 5th Ed., 27; then quoting Doudell v. Shoo, 159 Cal. 448, 453 (1911)).
Here, because the state-court motion for return of property did notand legally

20
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 31 of 59

could notresult in a final judgment on the merits, the previous proceeding is


not res judicata as to Wrights federal action.

Most importantly, a judicial decision on a motion to return property under


Penal Code section 1536 motion is not res judicata as to the issue of
ownership. Ensoniq, 65 Cal. App. 4th at 1550; see also id. (The limited nature of

[an] order [to return property] is consistent with the rule that the summary
remedy of a motion for return of seized property cannot be turned into a civil
proceeding for conversion.). Indeed, because Penal Code section 1536 concerns

only ones possessory interest in the subject property, a court cannot make a final
judgment on the merits of an ownership claim via special proceeding on a motion
to return seized property. See Ensoniq, 65 Cal. App. 4th at 1542-43, 1552; see also

In re Rathgebs Estate, 125 Cal. 302, 307 (1899) (holding that, in the context of a
summary proceeding for the removal of an estate executor, the superior
court . . . is not competent to decide finally upon the question of title). Whats
more, if a criminal court does pass on the issue of ownership, it does so
incidentally. Ensoniq, 65 Cal. App. 4th at 1550.
Fittingly, the Ventura Judge did not intend to makenor did he makea

final order regarding the Remaining Firearms. See infra Part II.A.2.b (discussion
of the district courts incorrect interpretation of the 2011 Written Order). The
2011 Written Order dealt only with the 26 firearms explicitly described. Id. And

while the order was silent as to the hundreds of other firearms Wright sought to
recover, id., the undisputed record shows that the Ventura Judge orally reserved

21
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 32 of 59

judgment on the disposition of those firearmsdirecting Wright and the LAPD


to work it out. E.R. II 36, 72, III 256. The district courts improper application

of the implied findings doctrine and rejection of these undisputed facts


notwithstanding, see infra Parts II.A.2.b. and II.B., the Ventura Judge made no
final judgment triggering applicability of res judicata.

In sum, neither the district court nor the City plausibly reasoned below
that any of the elements for claim preclusion can be met here. To the extent that
the district courts ruling is premised on claim preclusion, it must be reversed.

Taylor v. Stugell, 553 U.S. 880, 907 (2008).

2. Issue Preclusion Does Not Apply Because Wrights


State-Court Motion for Return of Property Did Not
Result in a Final Judgment as to Any Issue Common to
His Federal Action
California courts employ a three-part test to determine whether issue
preclusion applies to bar relitigating previously decided issues. Specifically:

(1) [T]he party against whom collateral estoppel is asserted [must


have been] a party in the prior proceeding; (2) the issue decided
at the previous proceeding [must be] identical to that which is
sought to be relitigated; and, (3) the previous proceeding [must
have] resulted in a final judgment on the merits.
Lucido, 51 Cal. 3d at 361 (quoting People v. Sims, 32 Cal. 3d 468, 484 (1982)).
Because the 2011 Written Order never resulted in a final judgment on the merits
of any relevant issue common to both proceedings, this matter falls woefully

short of meeting this test. The Court should reverse.

22
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 33 of 59

As an initial matter, issue preclusion is inapplicable because the issues


raised in state court and those raised here are not identical. See id. at 341. If the

legal claims and underlying facts differ, issue preclusion does not apply. Daar &
Newman v. VRL Intl, 129 Cal. App. 4th 482, 489 (2005). Here, there is no legal
or factual unity between the issues litigated in the state-court motion for return

of property and those raised by the federal action for conversion, trespass to
chattels, and various federal civil rights violations. The elements underlying each
are different, and they rely on different questions of law and fact.

Nonetheless, the district court relied on issue preclusion in dismissing


Wrights claims. E.R. I 5-7. The court reasoned that [a]ll of [Wrights] Causes of
Action ultimately revolve around his contention that the City interfered within

his ownership interest in the firearms. As a state court has already necessarily
determined that [Wright] did not establish his possessory interest in the later
destroyed firearms, the basis for all five of [Wrights] Causes of Action fail, . . .
E.R. I 6. In other words, the district court ruled thatbecause the Ventura court
decided that Wright had a possessory interest in 26 specific firearmsit had
necessarily rendered a final judgment as to both his ownership and possessory

interests in the hundreds of firearms at the heart of this dispute. E.R. I 5-7. The
district court was wrong.
The Ventura court lacked jurisdiction to render a final judgment about

Wrights ownership interest in the Remaining Firearms. And it decidedly did not
decide whether he had any possessory or ownership interest in themexpressly

23
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 34 of 59

deferring judgment on that issue. As such, the state-court property motion did
not result in a final judgment on any identical common issue. Application of

issue preclusion here was plain error.

a. The Ventura Court Could Not Have Entered a


Final Judgment as to Wrights Ownership
Interest in the Remaining Firearms Because It
Lacked Jurisdiction to Do So
Importantly, the district courts order conflates the factual issue of
possession with that of ownership. E.R. I 6-7 (holding that because the Ventura

Judge determined that Wright had no possessory interest in the Remaining


Firearms, Wright could not support a claim that he had an ownership interest
in them). The district court assumedincorrectlythat the state courts

judgment about Wrights possessory interest in the firearms in question (to the
extent it was addressed at all) applied equally to the issue of ownership.
But again, a decision on a motion to return property concerns only the
right to possess certain property. Ensoniq, 65 Cal. App. 4th at 1552; see also supra
Part II.A.1.c. It is not determinative of ownership. Id. For California law does not
authorize courts to make a final determination on ownership by way of a special

proceeding on a such a motion. See id. Similarly, a state-court order denying a


motion for return of seized property is not immediately appealable. People v.
Hopkins, 171 Cal. App. 4th 305, 308 (2009); see also People v. Gershenhorn, 225 Cal.

App. 2d 122, 125-26 (1964). And without a final appealable order, the doctrine
of res judicata is inapplicable.

24
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 35 of 59

In short, any ruling the Ventura Judge might have made about Wrights
interest in the Remaining Firearms is not res judicata as to the issue of

ownership. Ensoniq, 65 Cal. App. 4th at 1552.

b. The Ventura Court Did Not Enter a Final


Judgment as to Wrights Possessory or
Ownership Interest in the Remaining Firearms;
the District Courts Reliance on Implied
Findings to Rule Otherwise Was Improper
To the extent that the state-court motion for return of property and the
federal tort claims both involve the issue of Wrights possessory interest in the
Remaining Firearms, the record is clear that the Ventura Judge never made a

final judgment as to that issue. The 2011 Written Order is unambiguous. It is a


final ruling only as to the disposition of the 26 explicitly named firearms
nothing more. E.R. III 171-72. Issue preclusion is thus inapplicable.

Even so, the district court held that Wrights federal claims were barred
because the Ventura court had necessarily determined that [Wright] did not
establish his possessory interest in the later destroyed firearms. E.R. I 6. That is,

the district court inferred from the 2011 Written Orders silence an implied
finding that Wright had no interest in the Remaining Firearms, resulting in a
final judgment barring Wrights federal action. E.R. I 6-7 (holding that because

Wright brought a motion for the return of a large number of firearms, and the
state court responded that [Wright] was only entitled to the return of 26 of those
guns, it is presumed that the [state] court made such implied findings as will

25
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 36 of 59

support [its] judgment. ) (quoting Hall v. S.F. Mun. Ct. (McGaskey), 10 Cal. 3d
641, 643 (1974) (en banc)).

But the district court was wrong to infer an implied holding that was not
necessary to the ruling entered. It was doubly wrong to do so in conflict with
both reason and the undisputed record. The Court should overturn the district

courts issue-preclusion-based order because it relies almost entirely on an


improper application of the implied findings doctrine.

i. The District Court Improperly Inferred an


Implied Finding that Was Not Necessary
to the 2011 Written Order
The doctrine of implied findings requires the appellate court to infer the
trial court made all factual findings necessary to support the judgment. Fladeboe v.
Am. Isuzu Motors Inc., 150 Cal. App. 4th 42, 58 (2007), modified, (Apr. 24, 2007)

(emphasis added); see also Runyan v. P. Air Industries, Inc., 2 Cal. 3d 304, 309-10
(1970) (holding an implied finding result[ed] by necessary implication). That
implied findings only exist where necessary to sustain the judgment has been the

law in California for well over 140 years. City of Oakland v. Whipple, 39 Cal. 112,
115 (1870) (emphasis added); id. ([W]e must presume the implied findings to
have been such as were necessary to sustain the judgment . . . .) Because a

finding that Wright had no interest in the Remaining Firearms was not
necessary to the Ventura courts 2011 ruling, however, the district court could
not rightly infer that finding.

26
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 37 of 59

To be clear, it is not necessary to make an implied finding to sustain the


Ventura courts order. The 2011 Written Order is, essentially, a single sentence:

The following twenty-six (26) firearms, identified by item number, are ordered
released to [Wright]. E.R. III 172. The order says nothing about firearms
beyond those 26 expressly mentioned. E.R. III 171-72. All that is necessary to

this order, in the context of a motion for return of property, is a finding that
Wright had a possessory interest in those firearms ordered to be returned. See
Ensoniq, 65 Cal. App. 4th at 1542-43 ([T]his order is limited to a determination

of the right of actual possession of the physical items in this proceeding, and has
no effect upon the parties competing civil claims to ownership of either the
physical items or the intellectual property contained within them.). It was in no

way necessary for the Ventura court to make any finding about firearms not
described. Simply put, the 2011 Written Order is unambiguously not a final ruling
as to Wrights interest in the Remaining Firearms. It doesnt concern them at all.
Ruling that [Wright] was only entitled to the return of 26 of [the] guns
he sought to have returned, however, the district court appears to have
identified some latent ambiguity in the orders language. E.R. I 6 (emphasis

added). The courts choice of words indicates that it knew that the 2011 Written
Order did not refer to all the firearms Wright sought to have returned. E.R I 6,
III 172. A fact it could have only discerned by relying on extrinsic evidenceby

going beyond the bounds of the 2011 Written Order. So instead of recognizing
that the order had only one reasonable meaning as to the Remaining Firearms

27
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 38 of 59

(i.e., that it did not concern them at all), the district court adopted a contrary
interpretation based on extrinsic evidence. Something it was not free to do. See

Bartel v. Assoc. Dental Supply Co., 114 Cal. App. 2d 750, 752 (1952).
For the district courts reliance on extrinsic evidence simultaneously
recognizes that Wrights interpretation of the order is reasonable and precludes

the court from adopting the contrary interpretation championed by the City. To
be clear, [i]f the language of [a writing] is clear and explicit[,] the intent[] must
be ascertained from the writing alone . . . . Id. (emphasis added). Only when language

is ambiguous, can a court look beyond the bounds of the writing to discern its
meaning. Id.; In re Marriage of Paul, 173 Cal. App. 3d 913, 916 (1985). Ambiguity
exists if the order is capable of two different reasonable interpretations. Richeson

v. Helal, 158 Cal. App. 4th 268, 276-77 (2007), modified, (Dec. 21, 2007) (emphasis
added). Because the court relied on extrinsic evidence to interpret the 2011
Written Order, it necessarily recognized at least two different reasonable
interpretations. Id. Either the 2011 Written Order was a final ruling as to the
Remaining Firearms (the Citys interpretation, ultimately adopted by the district
court) or it was not (Wrights interpretation).

Recognizing two reasonable interpretations, however, precludes the


district court from holding that the Ventura court made the implied finding the
City Requests. The district courts implied-finding ruling is based on its

conclusion that a state court has already necessarily determined that [Wright]
did not establish his possessory interest in the later destroyed firearms. E.R. I 6.

28
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 39 of 59

That conclusion ignores that the finding being inferred is not only unnecessary
to, but is necessarily incompatible with, Wrights interpretationan interpretation the

district court must have recognized as reasonable to then rely on extrinsic


evidence to interpret the 2011 Written Order.
Because only necessary findings can be implied, Oakland, 39 Cal. at 115,

and because the district courts implied finding was not necessary under Wrights
concededly reasonable interpretation of the 2011 Written Order, the district
courts interpretation cannot stand. And by extension, neither can its dismissal of

Wrights claims under res judicata. For, absent any finding regarding Wrights
interest in the Remaining Firearms, the state-court order is not a final order as to
that issue for purposes of issue preclusion.

ii. The District Court Improperly Inferred and


Relied on an Implied Finding that Conflicts
with Both the Undisputed Record and
Reason
An important caveat to the implied findings doctrine exists. Namely, a
finding should not be presumed or implied where the record discloses that the
trial court expressly declined to make it. Reid v. Moskovitz, 208 Cal. App. 3d 29,

32 (1989) (emphasis added); see also Lafayette Morehouse, Inc. v. Chron. Publg Co., 39
Cal. App. 4th 1379, 1384 (1995) (When the record clearly demonstrates what
the trial court did, we will not presume it did something different.); Hall, 10 Cal.

3d at 643; Ellena v. State of California, 69 Cal. App. 3d 245, 254 (1977).


Accordingly, the presumption applies only where the record is silent as to the

29
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 40 of 59

matter inferred. 9 Witkin, Cal. Proc. 5th Appeal 355 (2008). Here, application
of the doctrine is improper for the only record of the relevant state-court

proceeding is far from silent as to the Remaining Firearms.4 Whats more, the
district courts implied findings ruling simply cannot be squared with common
sense or the parties conduct since 2011.

First, it is literally undisputed that, at the state-court hearing, the Ventura


Judge expressed his intention to withhold judgment as to the Remaining Firearms,
not to issue a final ruling as to whether Wright had any possessory or ownership

interest in them. E.R. II 29-31, 36-37, 72, 75, III 256-57. In fact, the City has
absolutely refused to deny the accuracy of attorney Silvosos sworn declaration
alleging that very fact. E.R. II30-31. The implied finding doctrine is clear. It does

not apply to any issue the relevant court chose not to rule on. See Reid, 208 Cal.
App. 3d at 32; Hall, 10 Cal. 3d at 643; Ellena, 69 Cal. App. 3d at 254. It does not
apply here.
Second, to the extent the Court can rightly consider facts outside the
record, Bartel, 114 Cal. App. 2d at 752, the Citys conduct has consistently shown
that it did notbefore Wright brought this actionunderstand the 2011 order

to concern the Remaining Firearms. Recall, the City engaged in communications

4
The record here includes not just the 2011 Written Order and other
papers on file, but also any discussion at the hearing. Because the only recording
or transcript was destroyed, and because Aubry and Tompkins refuse to make
any statement as to what Judge Wright ruled, E.R. II 29-31, the only record of
the hearing is the sworn declaration of attorney Silvoso, E.R. II 34-39. Absent
the original transcript and recording, Silvosos declaration is admissible evidence
of the content of those items. Fed. R. Evid. 1004.

30
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 41 of 59

with Wright for years after the 2011 hearing, resulting in the release and return of
dozens of firearms. E.R. II 37-38, III 256-58, 260-62, 265-66. Yet the City now

claims the ownership of those firearms was fully and finally adjudicated in 2011.
The Court should view any claim that this was merely a courtesy to Wright
and not evidence of the 2011 orders limited scopewith resolute skepticism.

Certainly, if the LAPD returned property to Wright that the Ventura Judge had
already ruled was not his, the LAPD would have violated its legal duty to comply
with the Ventura Judges order. Cal. Penal Code 1536; 28 Grams of Marijuana,

278 F. Supp. 2d at 1105-06. Its hard to believe that City agents would violate the
law to extend a courtesy to a man the City has publicly, and incorrectly,
labelled a gun runner. E.R. II 80.

Third, on a motion for return of property, the issue being decided is


possessionnot ownership. Ensoniq, 65 Cal. App. 4th at 1550. Again, Penal
Code section 1536 does not, either expressly or impliedly, suggest that a court
may finally determine ownership on a motion for the return of property. Id.; see also
In re Rathgebs Estate, 125 Cal. at 307. Thus, the district courts inferred implied
finding that the Ventura Judge intended to do just that runs contrary to what he

was statutorily authorized to order. There is, however, clear protocol to obtain
an order finally adjudicating the ownership of seized property. The LAPD took
advantage of it in 2013 when it covertly sought a disposition order from the Los

Angeles Superior Court. E.R. III 245, 260-64. But the fact that the City did not
then apply to the Ventura Judge for that relief cuts deeply against the Citys

31
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 42 of 59

claim that the Ventura Judge intended to finally rule on the ownership of the
Remaining Firearms in 2011. Indeed, the fact that such an order was sought at all

illustrates that the LAPD knew well that the 2011 order was not final. Why else
would the LAPD get another disposition order from Los Angeles if it already
had one from Ventura?

In short, not only is the implied finding relied upon by the district court
unnecessary to the 2011 Written Order, it is also wholly illogical considering
the undisputed record of the state-court proceeding and the parties conduct

since 2011. Because the district courts res judicata based dismissal of Wrights
action hinges on an inference of a ruling that was plainly never made, reversal is
appropriate.

B. This Court Should Reverse the Dismissal Because the District


Court Either Wrongly Ignored Well-pleaded Facts or Made a
Finding of Fact Made Prematurely
On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are
taken as true and construed in the light most favorable to the nonmoving party.

Cahill v. Lib. Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); accord Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007). It is well-established that questions of fact
cannot be resolved or determined on a motion to dismiss for failure to state a

claim upon which relief can be granted. Cook, Perkiss & Liehe, 911 F.2d at 245.
The district court either ignored Wrights allegations concerning what the
Ventura Judge ordered or it made a premature factual determination adverse to
Wrightthe non-moving partyat the pleadings stage. The Court should

32
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 43 of 59

reverse the dismissal of this action because, either way, the district court
circumvented its well-established duty to construe all material factual allegations

as true and in Wrights favor.

1. The District Courts Refusal to Recognize Well-pleaded


Factual Allegations Was Plain Error
Despite being required to accept all well-pleaded facts as true on a motion
to dismiss, Hughes v. Rowe, 449 U.S. 5, 10 (1980), the district court below did not.
Wrights First Amended Complaint plainly states that, at the 2011 hearing, the

Ventura Judge asked the parties to try to further informally work it out and to
come back to him if additional orders were needed. E.R. III 256-57. Wright
further alleged that the 2011 Written Order concerned only the disposition of

the 26 firearms expressly listed. E.R. II 72-73, 75-76, III 256-57. Had the district
court accepted these central factual allegations as true, as it was bound to do, it
could not have made the contrary finding that the state-court order disposed of
the Remaining Firearms in 2011. E.R. I 6. Nor could it have held that the order
was a final judgment triggering application of res judicata and, ultimately,
dismissal. E.R. I 6-7; see Lucido, 51 Cal. 3d at 361 ([T]he previous proceeding

[must have] resulted in a final judgment on the merits.).


True, district courts may ignore conclusory factual allegations in a
complaint if they contradict a document referred to in the complaint. Manzarek v.

St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (citing Warren
v. Fox Fam. WW, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003)). And courts need not

33
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 44 of 59

necessarily assume the truth of legal conclusions cast as factual allegations.


Warren, 328 F.3d at 1139; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). But nothing about this case
triggers either of these limited exceptions to the general rule governing Rule
12(b)(6) motions to dismiss. The court should have treated all of Wrights

allegations of material fact as true and in the light most favorable to him.
First, there is no conflict between Wrights factual allegations and the
2011 Written Order referred to in the complaint. As written, the order does not

conflict with Wrights claims that the Ventura Judge orally ordered the parties to
resolve the issue of the ownership issue outside of court or that the written order
was limited to the 26 listed firearms. Because the state courts silence as to

Wrights interest in the Remaining Firearms was never intended to serve as a


finding that he had none. See supra Part II.A.2.b. (for a discussion of the district
courts improper interpretation of the 2011 Written Order under the implied
findings doctrine).5
Second, the allegations at issue are not conclusory legal conclusions at all.
Rather, they refer to specific statements made by a judge during a public court

hearinga hearing that both Aubry and Tompkins attended, but now refuse to
speak about. The district court was wrong to disregard Wrights specific factual

5
Any conflict that did arise would have been between Wrights
allegations and the district courts interpretation of the 2011 order.

34
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 45 of 59

allegations as to what the Ventura Judge said at oral argument and what he
actually ordered. On a motion to dismiss, that is reversible error.

2. To the Extent the District Court Made a Factual


Finding at the Pleading Stage, It Committed Reversible
Error
If the district court did not ignore Wrights allegations as to what the
Ventura Judge intended (and actually) ordered, then it improperly resolved a

material factual dispute at the pleadings stage. But see Cook, Perkiss & Liehe, 911
F.2d at 245 (explaining that questions of fact cannot be resolved on a motion to
dismiss for failure to state a claim). Again, central factual issues regarding the

2011 state-court hearing and the resulting written order have been hotly disputed
throughout the course of this lawsuit. The district court improperly resolved
those factual issues in granting the Citys Motion to Dismiss.

After noting that the Ventura Judge only ordered 26 firearms returned
out [o]f the hundreds of guns that Plaintiff sought to regain custody[,] the
district court held that Wrights argument that the state court simply ignored

the hundreds of other guns that were not authorized for return is not
persuasive. E.R. I 7. In so holding, the court improperly determined a question
of facti.e., what the Ventura Judge intended to order. See Crutcher v. Breck, No.

271599, 2007 WL 840127, at *1 (Mich. Ct. App. Mar. 20, 2007) (per curiam)
(Whether the clarification order accurately reflected the trial courts intent is a
question of fact.). Based on the fact that the Ventura Judge had issued a final

35
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 46 of 59

ruling as to Wrights ownership interests in all the firearms, the district court
dismissed each of Wrights claims under res judicata. E.R. I 6.

That decision was plainly incorrect. The district court evidently did not
believe Wrights factual allegation that the Ventura Judge never intended to make
a final ruling as to the ownership of the Remaining Firearms. E.R. I 7. At the

pleadings stage, however, that belief was legally irrelevant, and it should not have
driven the district courts analysis of the Citys Motion to Dismiss. Hughes, 449
U.S. at 10 ([T]he allegations of the complaint are generally taken as true for

purposes of a motion to dismiss.).


Had the district court wanted to pierce the pleadings and resolve factual
issues, the mechanism to do so is not a motion to dismiss, it is a rule 56

summary judgment motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). But to convert a rule 12 motion into a rule 56
motion, the district court must first provide all parties . . . a reasonable
opportunity to present all the material that is pertinent to the motion. Fed. R.
Civ. P. 12(d). The district court afforded Wright zero opportunity. Yet, before
throwing out his claims, the court weighed evidence, rejected Wrights factual

allegations, and made factual determinations. In short, the Court treated the
matter as if the parties had fully briefed a rule 56 motion, not a 12(b)(6) motion.
Insofar as the dismissal of this action was based on an unauthorized and

premature factual determination, effectively converting the motion to dismiss


into a summary judgment motion, the Court should reverse.

36
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 47 of 59

C. The District Court Violated Wrights Due Process Rights by


Ruling on a Late-raised Argument to Which Wright Had No
Opportunity to Respond
The Fifth Amendment provides that no state may deprive any person of
life, liberty, or property, without due process of law. U.S. Const. amend. V

(emphasis added). [T]he fundamental requirement of due process is the


opportunity to be heard at a meaningful time and in a meaningful manner.
Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Here, the district court dismissed
Wrights action based on an argument: (1) that was raised for the first time on
reply; (2) that was mutually exclusive to the argument made in the Citys moving
papers; and (3) to which Wright never had the chance to respond. Because

Wright never had any meaningful opportunity to respond to the argument


prompting dismissal of his lawsuit, basic notions of due process require reversal
of the district courts order.

Recall, the City sought to dismiss Wrights action based on the bald
assertion that the Ventura Judge said Wright had no ownership interest in the
firearms at issue in this case. E.R. II 85. After Wright reminded the court that

the Ventura Judge did not say such a thing, E.R. II 72, 75-76 (citing E.R. III 256-
57), the City abandoned its original argument in favor of a mutually exclusive one.
Specifically, the City arguedfor the first time on replythat although the

Ventura Judge did not expressly rule that Wright had no interest in the
Remaining Firearms, that ruling was implied. E.R. II 67-69. Just days after the
City filed its reply, raising this new argument, the district court cancelled oral

37
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 48 of 59

argument and took the matter under submission. E.R. III316. A short time later,
the court dismissed Wrights action relying directly on an argument to which

Wright never had an opportunity to respond. E.R. I 5-7.


The district court later provided this explanation as to why this was not a
violation of due process: [T]his [c]ourt independently interpreted the meaning

of the language in Hall that discussed implied findings, and . . . . determined


that collateral estoppel was appropriate because [Wright] did not allege sufficient
facts . . . . E.R. I 2-3. While unclear, it seems the courts position was that

Wright did not have a right to respond to the Citys implied finding arguments
because the ruling was based on the courts independent[ ] interpretation of
the implied finding authority raised on reply, and not an adoption of the Citys

arguments on reply. See E.R. I 2. The district courts explanation does not
overcome the due process problem.
First, the district court should not have considered the implied finding
doctrine at all. The local rules require that the initial moving papers include all
points and authorities . . . and evidence upon which the moving party will rely
in support of the motion. C.D. Cal. Civ. R. 7-5. This requirement is

complementary to the general principle [that] arguments raised for the first time
in a reply brief are waived. Somers v. Dig. Realty Tr., Inc., 119 F. Supp. 3d 1088,
1106 (N.D. Cal. 2015); accord United States v. Anderson, 472 F.3d 662, 668 (9th Cir.

2006); see also Cal. Sportfishing Prot. All. v. Pac. States Indus., Inc., No. 15-CV-01482-
JD, 2015 WL 5569073, at *2 (N.D. Cal. Sept. 22, 2015) (Raising new arguments

38
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 49 of 59

in a reply brief is classic sandbagging, and the [c]ourt will not tolerate it.).
Though courts have discretion to consider arguments raised for the first time on

reply, they:

[S]hould [also] protect the non-moving party against unfair


surprises by allowing it an opportunity to respond. Provenz v.
Miller, 102 F.3d 1478, 1483 (9th Cir. 1996). The court[s] may
choose to either provide oral argument to the non-moving party,
or allow the non-moving party to file a sur-reply.
Sherman v. Yahoo! Inc., No. 13CV0041, 2015 WL 5604400, at *3 (S.D. Cal. Sept.
23, 2015) (internal quotation marks omitted).

Judge Manuel L. Real, the district court judge who issued the rulings
below, applied this principle less than seven months earlier in an unrelated
action. West v. Cate, No. 11-6791-R, 2015 WL 4498066, at *9 n.33 (C.D. Cal. July

16, 2015) ([B]ecause [petitioner] has presented this claim for the first time in his
Reply, Petitioner has not properly presented [that] claim.) (citing Cacoperdo v.
Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994)). But for whatever unexplained
reason, the district court disregarded what is apparently its normal practice and
rewarded the Citys chicanery by not only considering, but also adopting, its last-
minute argument. Making matters worse, it did so without entertaining oral

argument or allowing a sur-reply, abrogating its obligation to protect the non-


moving party against unfair surprises. Provenz, 102 F.3d at 1483. The district
court did not, and could not have, identified a legally sufficient reason for ruling

on a late-raised argument without giving Wright the opportunity to respond.


Accordingly, the decision to dismiss Wrights case on a theory that should have

39
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 50 of 59

never been considered by the district court was a clear error that should be
remedied by this Court.

Second, courts independently interpret the case law and arguments


raised by litigants daily. The district court provides no reason as to why this
unremarkable fact should absolve the court of its duty to allow Wright to

respond to an argument that was the basis upon which his case was dismissed.
Third, even assuming the district courts implied finding analysis was the
product of its own independent research and not the Citys arguments on reply,

due process still demands the court give Wright a chance to respond. See, e.g.,
Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999) (providing the adversely
affected party with notice and an opportunity to be heard plays an important

role in establishing the fairness and reliability of the order.). Wright has not
located any intra-circuit authority arising in the exact circumstances here, e.g.,
where the trial court dismisses a case without hearing or sur-reply based on an
argument unknown to the plaintiff at the time its opposition to a motion dismiss
was filed. But the rules governing sua sponte Rule 12(b)(6) dismissals in other
scenarios are illuminating.

Namely, if a trial court determines on its own initiative that dismissal


under rule 12(b)(6) is warranted, it must give notice of its sua sponte intention
to invoke [r]ule 12(b)(6) and afford plaintiffs an opportunity to at least submit a

written memorandum in opposition to such motion. Wong v. Bell, 642 F.2d

40
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 51 of 59

359, 361-62 (9th Cir. 1981).6 This is true even if the trial court has identified a
dispositive issue of law that purportedly justifies dismissal. See Seismic Reservoir

2020, Inc. v. Paulsson, 785 F.3d 330, 335 (9th Cir. 2015). The fact that Wright filed
an opposition to the Citys motion to dismiss does create no relevant distinction
here. That opposition was filed before the City flip-flopped, implicitly retracted its

argument based on what the Ventura Judge supposedly said, and introduced a
new argument on reply. E.R. II 67-69, III 316. When the district court failed to reject
the Citys last-minute argument, he effectively authorized the City to file a

second motion to dismissa motion that Wright never got to respond to.
Because the district court denied Wright any meaningful opportunity to
respond to arguments made for the first time on reply, the court violated [t]he

fundamental requirement of due process[:] the opportunity to be heard at a


meaningful time and in a meaningful manner. Mathews, 424 U.S. at 333 (emphasis
added). Respect for the constitutional requirement of due process requires
reversal.

6
The only exception is where [p]laintiff cannot possibly win relief
under the law relied on in his complaint. Sparling v. Hoffman Const. Co., Inc., 864
F.2d 635, 637 (9th Cir. 1988) (quoting Wong, 642 F.2d at 359). That exception is
narrow, however, justifiably applied only in those rare circumstances where ones
bar to relief is exceedingly clear-cut.

41
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 52 of 59

III. THIS COURT SHOULD REVERSE THE DENIAL OF WRIGHTS


INDICATIVE RULING MOTION AS IT WAS DEPENDENT ON THE LEGAL
ERRORS DISCUSSED ABOVE
Under Federal Rules of Civil Procedure, rule 60(b)(3), a district court may
vacate an earlier dismissal for fraud, misrepresentation, or misconduct by an

opposing party. Rule 62.1 allows a party, having appealed his case on the merits,
to seek an indicative ruling from the district court if, after the appeal, grounds
for relief could be had in the lower court on remand. After appealing the
dismissal of his claims, Wright filed a rule 62.1/60 motion, asking the district
court to consider whether it would set aside its dismissal order because the City
had wrongfully secured it. E.R. II 61-63. Specifically, Wright argued that the City

had misrepresented the scope of the 2011 Written Order and prejudicially raised
the implied findings argument for the first time on reply.
In a terse denial, the district court ruled that it did not believe that the

previous state court decisions [were] materially represented by the City and so it
would not grant rule 60 relief. E.R. I 3. The court reasoned that because it had
independently determined that the 2011 Written Order contained an implied

finding that was binding on the federal court and that such order was a final
decision on the merits, res judicata precludes Wrights claims. E.R. I 3. But as
described in detail above, the district courts application of res judicata to dismiss

Wrights lawsuit was incorrect. See supra Part II.A. The court was doubly wrong
to then use that improper legal analysis as grounds to conclude that the City did

42
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 53 of 59

not engage in fraud, misrepresentation, or misconduct. This was an abuse of the


courts discretion.

Ultimately, the district court refused to recognize that the City had
mischaracterized the 2011 Written Order, and the intent behind that order,
holding that the City had not committed duplicitous conduct at all, let alone

conduct justifying relief under rule 60. E.R. I 6-7. The courts rationale was
essentially that, because the Citys characterization of the 2011 order is
consistent with the district courts interpretation, the Citys characterization must

have been truthful. As has been shown, however, the district court had no legal
justification for its interpretation of the 2011 Written Order or the resulting
dismissal. Because the district courts circular logic cannot support the Citys

version of events, the district court should be given the opportunity to


reconsider this issue with guidance from this Court as to how to properly
interpret the 2011 Written Order at this stage in the pleadings.
As to the due process arguments regarding the district courts failure to
provide Wright an opportunity to respond to the legal argument upon which
Wrights lawsuit was dismissed, the district court stated that there was no

violation because it had determined that collateral estoppel was appropriate


because [Wright] did not allege sufficient facts to determine a separate issue of
law or fact from the September 29, 2011 state court hearing.7 E.R. I 2-3. But as

7
Because the City refuses to take a position as to what happened at the
September 29, 2011 state court hearing[,] the only factual allegations the district
court could have relied on are those made in Wrights First Amended

43
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 54 of 59

explained in Part II.B. above, the district court improperly relied on its
interpretation of silence in the 2011 Written Order and ignored Wrights factual

allegations to the contrary. Thus, the courts denial of the due process argument
made in Wrights Motion for Indicative Ruling was a clear legal error.

CONCLUSION
The City used sharp tactics while litigating this matter in the court below.

Nonetheless, the district court, ignoring many well-established legal principals,


validated the Citys inappropriate conduct when it dismissed Wrights lawsuit
with prejudice. As to all questions of law ruled on by the district court and

examined here, the pattern of clear legal error cannot be ignored.


Wright thus respectfully asks this Court to reverse the district courts
orders below, reinstate Wrights claims, and remand for further proceedings.

STATEMENT OF RELATED CASES


Under Circuit Rule 28-2.6, Wright certifies that there are no related cases
pending before this Court. There are, however, two matters currently pending in
California state courts that are related.

1. Wright filed related claims in state court on January 13, 2016. Cal.
Super. Ct. L.A. Cnty., Case No. BC606993. Wrights state action was dismissed
without leave to amend, and Wright appealed to the California Court of Appeal.

Complaintallegations the district court found not persuasive, E.R. I 7.


Wright thus presumes the courts reference to the September 29, 2011 state
court hearing refers only to its interpretation of the 2011 Written Order.

44
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 55 of 59

Cal. Ct. App., 2d Dist., Case No. B277062. That appeal was stayed pending this
Courts decision. Order Re: Appellants Motion to Stay Proceedings Pending

Federal Appeal 1, Wright v. Los Angeles, No. B277062 (Nov. 15, 2016).
2. Wright recently filed another motion for return of property with
the Ventura County Superior Court. Cal. Super. Ct., Ventura Cnty., Case No.

2005042520. Originally the matter was calendared for December 21, 2016, but it
was twice continued. It is now scheduled to be heard by the Ventura Judge on
March 9, 2017.

Date: February 17, 2017 MICHEL & ASSOCIATES, P.C.

/s/ C.D. Michel


C.D. Michel
Counsel for Plaintiff-Appellant
Wayne William Wright

45
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 56 of 59

ADDENDUM

A1
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 57 of 59

ADDENDUM
U.S. Const. amend. X
No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a grand jury, except in cases arising in the land or
naval forces, or in the militia, when in actual service in time of war or public danger;
nor shall any person be subject for the same offense to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.

Cal. Penal Code 1536


All property or things taken on a warrant must be retained by the officer in his
custody, subject to the order of the court to which he is required to return the
proceedings before him, or of any other court in which the offense in respect to
which the property or things taken is triable.

A1
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 58 of 59

CERTIFICATE OF SERVICE

I hereby certify that on February 17, 2017, an electronic PDF of

APPELLANTS OPENING BRIEF was uploaded to the Courts CM/ECF system,

which will automatically generate and send by electronic mail a Notice of Docket

Activity to all registered attorneys participating in the case. Such notice constitutes

service on those registered attorneys.

Date: February 17, 2017 MICHEL & ASSOCIATES, P.C.

/s/ C.D. Michel


C.D. Michel
Counsel for Plaintiff-Appellant
Wayne William Wright
Case: 16-55239, 02/17/2017, ID: 10325592, DktEntry: 15, Page 59 of 59

Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28-1.1(f),


29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 16-55239 & 16-55984
Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief.
I certify that (check appropriate option):

This brief complies with the length limits permitted by Ninth Circuit Rule 28-1.1.
The brief is words or pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-1.
The brief is 11,654 words or pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b).
The brief is words or pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a
single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a
longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P.
32(a)(5) and (6).

This brief complies with the longer length limit authorized by court order dated
The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is
words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable.

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2
(a) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32
(f), if applicable. The briefs type size and type face comply with Fed. R .App. P. 32(a)(5) and (6).

This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2
(c)(2) or (3) and is words or pages, excluding the portions exempted by Fed. R.
App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and
(6).

This brief complies with the length limits set forth at Ninth Circuit Rule 32-4.
The brief is words or pages, excluding the portions exempted by Fed. R. App. P.
32(f), if applicable. The briefs type size and type face comply with Fed. R. App. P. 32(a)(5) and (6).

Signature of Attorney or Date 02/17/2017


/s/C.D. Michel
Unrepresented Litigant
("s/" plus typed name is acceptable for electronically-filed documents)

(Rev.12/1/16)

You might also like