Christina Astorga v. County of Los Angeles

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2021
• Docket: 21-55059
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHRISTINA ASTORGA; et al., No. 21-55059

Plaintiffs-Appellants, D.C. No. 2:20-cv-09805-AB-AGR v.

COUNTY OF LOS ANGELES, a municipal MEMORANDUM* corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding

In re: CHRISTINA ASTORGA; et al., No. 21-70845 ______________________________ D.C. No. CHRISTINA ASTORGA; et al., 2:20-cv-09805-AB-AGR

Petitioners, ORDER v.

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, LOS ANGELES,

Respondent,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. COUNTY OF LOS ANGELES, a municipal corporation; et al.,

Real Parties in Interest.

Petition for Writ of Mandamus

Argued and Submitted July 8, 2021 San Francisco, California

Before: GRABER and LEE, Circuit Judges, and VRATIL,** District Judge.

In Case No. 21-55059, Plaintiffs appeal the denial of a preliminary

injunction ordering Defendants to return their property following the Los Angeles

County Sheriff’s Department’s (“LASD”) seizure of various items during two

protests in September 2020. In Case No. 21-70845, Plaintiffs petition for a writ of

mandamus ordering the district court to disclose Defendants’ ex parte, in camera

submission cited as the basis for that denial. Reviewing for abuse of discretion,

Garcia v. Google, Inc., 786 F.3d 733, 739 (9th Cir. 2015) (en banc), we affirm the

denial of the preliminary injunction.1 We grant the petition for a writ.

1. The district court did not abuse its discretion in denying a preliminary

injunction because Plaintiffs failed to show irreparable harm from any delay in

** The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. 1 We deny Defendants’ motion to dismiss because the return of some of Plaintiffs’ property does not render this appeal moot.

2 reclaiming their property. See Marlyn Nutraceuticals, Inc. v. Mucos Pharma

GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (holding that "[i]n general,

mandatory injunctions ‘are not granted unless extreme or very serious damage will

result and are not issued . . . where the injury complained of is capable of

compensation in damages’" (citation omitted) (emphasis added)). Plaintiffs fail to

meet that high burden because they do not claim that Defendants, in fact, deprived

them of digital papers or effects that they could not otherwise access. See Riley v.

California, 573 U.S. 373, 393–94 (2014) (holding that cellphones allow people to

"lug around every piece of mail they have received for the past several months,

every picture they have taken, or every book or article they have read"). Plaintiffs’

claim that California’s procedures for the return of seized property violate due

process is foreclosed. See Perkins v. City of W. Covina, 113 F.3d 1004, 1011 (9th

Cir. 1997) (holding that California’s procedures to litigate the return of seized

property satisfy due process), rev’d on other grounds, 525 U.S. 234 (1999); see

also Oziel v. Superior Ct., 273 Cal. Rptr. 196, 201 (Ct. App. 1990) (holding that

"[t]he same rule applies to property seized without a warrant" as applies to

property seized with a warrant).

2. We grant Plaintiffs’ petition for a writ of mandamus in Case No. 21-

70845. The district court has two options. The court can reveal the information on

which it relied in denying the preliminary injunction. See Am.-Arab Anti-

3 Discrimination Comm. v. Reno, 70 F.3d 1045, 1069 (9th Cir. 1995) (holding that it

is "the firmly held main rule that a court may not dispose of the merits of a case on

the basis of ex parte, in camera submissions" (quoting Abourezk v. Reagan, 785

F.2d 1043, 1061 (D.C. Cir. 1986))); Al Haramain Islamic Found., Inc. v. U.S.

Dep’t of Treasury, 686 F.3d 965, 983 (9th Cir. 2012) (holding that courts should

consider the "practical reality" of disclosure on an investigation, not the

government’s "abstract concerns[,]" and that redactions may prove to be a

compromise solution). Alternatively, the district court can make appropriate

findings to justify its blanket non-disclosure order, as our case law would require.

See Al Haramain Islamic Found., Inc., 686 F.3d at 980 (applying the balancing test

from Mathews v. Eldridge, 424 U.S. 319 (1976)); United States v. Thompson, 827

F.2d 1254, 1258–59 (9th Cir. 1987) (holding that "[a]bsent . . . compelling

justification, ex parte proceedings are anathema in our system of justice"). The

district court may wish to consider, for instance, Defendants’ concession at oral

argument that Plaintiffs here likely are no longer suspects in an ongoing criminal

investigation.

In Case No. 21-55059, AFFIRMED; in Case No. 21-70845, PETITION

GRANTED.