Professional Documents
Culture Documents
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
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TABLE OF CONTENTS
Page
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
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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
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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
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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
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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
ix
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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
1
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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?
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
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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
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
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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,
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
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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.
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
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
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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
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.
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.
6
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return hearing. E.R. II 37. Limited to the 26 specific, uncontested firearms, the
proposed order read:
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
7
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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.
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
8
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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:
9
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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.
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
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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
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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
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
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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
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
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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
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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.
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
15
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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
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
16
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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
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
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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 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
18
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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
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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),
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
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
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[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
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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.
22
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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.
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
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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
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
App. 2d 122, 125-26 (1964). And without a final appealable order, the doctrine
of res judicata is inapplicable.
24
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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
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
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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
(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
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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
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(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).
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.
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That conclusion ignores that the finding being inferred is not only unnecessary
to, but is necessarily incompatible with, Wrights interpretationan interpretation the
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.
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.
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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.
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
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.
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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.
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
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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.
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
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reverse the dismissal of this action because, either way, the district court
circumvented its well-established duty to construe all material factual allegations
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
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
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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
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
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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.
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
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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
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
36
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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
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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 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
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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:
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
39
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never been considered by the district court was a clear error that should be
remedied by this Court.
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.
40
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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
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
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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
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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
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
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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.
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.
44
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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.
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ADDENDUM
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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.
A1
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CERTIFICATE OF SERVICE
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
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).
(Rev.12/1/16)