Shilling v. County of San Diego

Opinion

1 2 3 4 5 6 7 10 11 KENNETH CHARLES SHILLING, Case No.: 3:24-cv-01047-CAB-DDL

12 Plaintiff, ORDER DENYING MOTION FOR 13 v. RECONSIDERATION

14 COUNTY OF SAN DIEGO, et al.,

15 Defendants. [ECF No. 22] 16 17 Plaintiff Kenneth Shilling sued Defendants County of San Diego and Sheriff Kelly 18 Martinez for violations of the First and Second Amendment after Defendant Martinez 19 allegedly revoked Plaintiff’s license to carry concealed weapons (“CCW”). Plaintiff 20 sought injunctive and declaratory relief and damages. [Compl. 1.] Defendants filed a 21 motion to dismiss. [ECF No. 8.] The Court granted Defendants’ motion to dismiss as (1) 22 the County of San Diego was an improper defendant, (2) Defendant Martinez was entitled 23 to Eleventh Amendment immunity, and (3) Plaintiff failed to allege a First Amendment 24 injury. [ECF No. 21.] 25 Now, pursuant to Federal Rule of Civil Procedure 60(b), Plaintiff moves for 26 reconsideration of the Court’s granting of Eleventh Amendment immunity to Defendant 27 Martinez. [ECF No. 22, 2–3.] Plaintiff additionally seeks permission to amend the 28 complaint to join the State of California and, pursuant to 28 U.S.C. § 1292(b), to file an 1 interlocutory appeal. [Id.] For the reasons explained further below, Plaintiff’s motion for 2 reconsideration, request to amend the complaint, and file an interlocutory appeal is 5 A. Reconsideration; Rule 60 6 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of 7 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 8 F.3d 877, 890 (9th Cir. 2000); see also United Nat’l Ins. Co. v. Spectrum Worldwide, 9 Inc., 555 F.3d 772, 780 (9th Cir. 2009). “[A] motion for reconsideration should not be 10 granted, absent highly unusual circumstances, unless the district court is presented with 11 newly discovered evidence, committed clear error, or if there is an intervening change in 12 the controlling law.” Marlyn Natraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 13 F.3d 873, 880 (9th Cir. 2009) (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 14 (9th Cir. 1999)). A motion for reconsideration “may not be used to raise arguments or 15 present evidence for the first time when they could reasonably have been raised earlier in 16 the litigation.” Kona Enters., 229 F.3d at 890. 17 Rule 60 provides for extraordinary relief and may be invoked only upon a showing 18 of “exceptional circumstances.” Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044 19 (9th Cir. 1994). The Rule identifies six permissible grounds for relief from a final 20 judgment, order, or proceeding, namely: “(1) mistake, inadvertence, surprise, or excusable 21 neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been 22 discovered in time to move for a new trial under Rule 59(b); (3) fraud by the adverse party; 23 (4) the judgment is void; (5) the judgment has been satisfied; (6) and other reason justifying 24 relief.” Fed. R. Civ. P. 60(b). 25 B. Interlocutory Appeal 26 The statutory standard for certifying questions for interlocutory appeal is set forth in 27 28 U.S.C. § 1292(b): “When a district judge, in making in a civil action an order not 28 otherwise appealable under this section, shall be of the opinion that such order involves a 1 controlling question of law as to which there is substantial ground for difference of opinion 2 and that an immediate appeal from the order may materially advance the ultimate 3 termination of the litigation, he shall so state in writing in such order. . . . [t]hat application 4 for an appeal hereunder shall not stay proceedings in the district court unless the district 5 judge or the Court of Appeals or a judge thereof shall so order.” 6 Certifying questions for interlocutory appeal thus requires the district court to find: 7 “(1) that there [is] a controlling question of law, (2) that there [are] substantial grounds for 8 difference of opinion, and (3) that an immediate appeal may materially advance the 9 ultimate termination of the litigation.” In re Cement Antitrust Litig., 673 F.2d 1020, 1026 10 (9th Cir. 1982). All three must be met for a court to certify a question, and the party 11 pursuing the interlocutory appeal bears the burden of so demonstrating. Couch v. 12 Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). 13 “Section 1292(b) is a departure from the normal rule that only final judgments are 14 appealable, and therefore must be construed narrowly.” James v. Price Stern Sloan, Inc., 15 283 F.3d 1064, 1068 n.6 (9th Cir. 2002). Requests to certify an order for interlocutory 16 appeal should be granted “only in extraordinary cases,” and not “merely to provide review 17 of difficult rulings in hard cases.” U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 18 1966); see also James, 283 F.3d at 1068 n.6 (noting that certification is appropriate only in 19 “rare circumstances”). Courts traditionally will find that a substantial ground for difference 20 of opinion exists where “novel and difficult questions of first impression are presented.” 21 Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011) (citing Couch, 22 611 F.3d at 633). However, “just because a court is the first to rule on a particular question 23 . . . does not mean there is such a substantial difference of opinion as will support an 24 interlocutory appeal.” Couch, 611 F.3d at 633. Nor is a party’s “strong disagreement with 25 the Court’s ruling” sufficient to establish a substantial difference of opinion. Id. Rather, 26 the party bearing the burden must show that “exceptional circumstances” exist that “justify 27 a departure from the basic policy of postponing appellate review until after the entry of a 28 final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978), superseded on 1 other grounds by statute, Fed. R. Civ. P. 23(f), as recognized in Microsoft Corp. v. Baker, 2 137 S. Ct. 1702 (2017). 4 Plaintiff argues that the Court erred when it determined that Defendant Martinez 5 represents and implements policy for the State of California, not the County of San Diego, 6 when administering CCW licenses, and is therefore entitled to Eleventh Amendment 7 immunity. He contests that the Court should have applied the “arm of the state” doctrine 8 from Kohn v. State Bar of California, 87 F.4th 1021 (9th Cir. 2023), which he argues would 9 lead the Court to find that Sheriff Martinez represents the County, not the State. Plaintiff 10 additionally seeks to amend the complaint and to join the State of California, arguing they 11 are a necessary party, and to certify the Eleventh Amendment issue for interlocutory 12 appeal. Plaintiff does not challenge the Court’s holding that he failed to state a claim under 13 the First Amendment. 14 A. Plaintiff’s Claim for Injunctive and Declaratory Relief is Moot 15 The Court in its order granting the motion to dismiss took judicial notice of the fact 16 that Plaintiff’s CCW license was to expire on December 8, 2024, a determination which 17 Plaintiff does not challenge. [ECF No. 21, 4–5 fn.1.] The Court stated that if the “action 18 were brought after Dec. 8, 2024, it would indeed be moot because Plaintiff would need to 19 reapply to secure the license and the standard he challenged would no longer be used to 20 assess his application.” [Id.] “No matter how vehemently the parties continue to dispute 21 the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute 22 ‘is no longer embedded in any actual controversy about the plaintiffs’ particular legal 23 rights.’” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Alvarez v. Smith, 558 24 U.S. 87, 93 (2009)). 25 Plaintiff fails to address in his motion for reconsideration how there is any actual, 26 live controversy. He raises no exceptions to the mootness doctrine, nor does the Court 27 think one applies. Plaintiff’s CCW license, in any circumstance, would now be expired, 28 and Plaintiff would have to reapply to secure a license. Given that the licensing policy 1 Plaintiff challenges has changed following the implementation of California Senate Bill 2 No. 2, the Court finds Plaintiff’s Second Amendment claim for injunctive and declaratory 3 relief MOOT. 4 B. Plaintiff’s Request for Leave to Amend and to Join the State of California is 5 Denied 6 Although Plaintiff argues that Defendant Martinez is an agent of the County of San 7 Diego, and not the State of California, he nonetheless seeks to join the latter, alleging “the 8 State is indispensable to provide complete relief.” [ECF No. 22, 9.] The Court disagrees. 9 As Plaintiff’s claim for injunctive and declaratory relief is moot, all that remains is his 10 request for damages. Except for a waiver of immunity, Congressional abrogation, or 11 prospective injunctive relief through Ex Parte Young, a state is immune from suits brought 12 by citizens in federal court. Douglas v. California Dept. of Youth Authority, 271 F.3d 812, 13 817–18 (9th Cir. 2001). Here, as none of those exceptions apply, Plaintiff’s proposed 14 amendment is futile because he is barred from seeking damages from the State of 15 California. Therefore, Plaintiff’s request to amend the complaint and join the State is 16 DENIED. See Imblum v. Code Corp., No. 3:16-CV-02110-CAB-AGS, 2017 WL 17 3594569, at *3 (S.D. Cal. Aug. 21, 2017) (“leave to amend need not be granted when the 18 proposed amendment is futile”) (citing Universal Mortg. Co. v. Prudential Ins. Co., 799 19 F.2d 458, 459 (9th Cir. 1986)). 20 C. Court’s Application of Scocca, and thus McMillian, was proper 21 Plaintiff asserts that the Court should have used the Ninth Circuit’s framework 22 provided in Kohn to analyze whether Defendant Martinez represented the County or the 23 State when she revoked Plaintiff’s CCW license. Plaintiff never raised this argument in 24 their response to Defendants’ motion to dismiss. [ECF No. 10.] The Court nonetheless 25 will consider Plaintiff’s argument for purposes of this motion. 26 In Kohn, the Ninth Circuit overruled its previous framework, known as the Mitchell 27 factors, for determining when “an entity is an arm of the state for purposes of sovereign 28 immunity.” Kohn, 87 F.4th at 1026; Mitchell v. Los Angeles Cmty. Coll. Dist., 861 F.2d 1 198 (9th Cir. 1988). Plaintiff argues that, in light of Kohn, the Court’s reliance on Scocca 2 v. Smith, 912 F. Supp. 2d 875 (N.D. Cal. 2012), and Markowitz v. City of Burbank, CV 24- 3 047 PA (JCx), 2024 U.S. Dist. LEXIS 73037 (C.D. Cal. Apr. 21, 2024), was a mistake that 4 renders the Court’s order legally insufficient because those cases were decided pre-Kohn. 5 The Court notes it additionally relied on Nordstrom v. Dean, No. CV 15-7607 DMG 6 (FFMx), 2016 WL 10933077 (C.D. Cal. Jan. 8, 2016), which was also decided pre-Kohn, 7 in concluding that Sheriff Martinez represented the State of California in administering 8 CCW licenses. 9 Contrary to Plaintiff’s assertion, the Ninth Circuit’s holding in Kohn neither 10 overturns nor undermines Scocca, Markowitz, Nordstrom, nor the Court’s order in this 11 case. Indeed, none of the cited cases even referenced the now-abrogated Mitchell in 12 reaching their determination that a sheriff represents the State when administering CCW 13 licenses. Rather, the Scocca decision, which Markowitz and Nordstrom both cited, relied 14 on the Supreme Court’s “analytical framework” in McMillian v. Monroe County, 520 U.S. 15 781 (1997), for guidance on deciding “how [] state law treat[s] a sheriff . . . acting as a 16 CCW licensor[.]” Scocca, 912 F. Supp. 2d at 882. 17 In McMillian, the Supreme Court asked whether Alabama sheriffs sued pursuant to 18 a Monell theory as policymakers, represented the county or state when executing their law 19 enforcement duties, and concluded that they represented the state. McMillian, 520 U.S. at 20 793. Under Monell, a municipality or local official (in their official capacity), may be sued 21 only for “a policy statement, ordinance, regulation, or decision officially adopted” or 22 informal custom. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 659 23 (1978). The McMillian Court explained that “cases on the liability of local governments 24 under § 1983 instruct us to ask whether government officials are final policymakers for the 25 local government in a particular area, or on a particular issue.” McMillian, 520 U.S. at 26 785. The Court established a framework for lower courts to use when analyzing whether, 27 for a given function, a sheriff represents their state or county, which includes examining 28 the relevant provisions of the state constitution and code, the payment of the sheriff’s 1 salary, and control over the sheriff in fulfilling his duty, among other factors. Id. at 787– 2 93. McMillian, upon which the reasoning of Scocca rests, is binding precedent. Thus, if a 3 court is tasked with determining whether a government official—as a policymaker on a 4 particular issue— represents the local government or the state, McMillian applies. 5 Kohn, and previously Mitchell, are distinguishable from McMillian in that they 6 concern whether a given entity is an “arm of the state” for sovereign immunity purposes. 7 Indeed, cases that applied Kohn (or previously Mitchell) all related to analyzing the status 8 of such entities for purposes of immunity. See Kohn, 87 F.4th (California State Bar); see 9 also Crowe v. Oregon State Bar, 112 F.4th 1218 (9th Cir. 2024) (Oregon State Bar); see 10 also Mitchell, 861 F.2d (Los Angeles Community College); see also Belanger v. Madera 11 Unified School Dist., 963 F.2d 248 (9th Cir. 1992) (California school districts); see also 12 Eaglesmith v. Ward, 73 F.3d 857 (9th Cir. 1995) (county offices of education); see also 13 Beentjes v. Placer Cnty. Air Pollution Control Dist., 397 F.3d 775 (9th Cir. 2005) 14 (California’s air pollution control districts). Plaintiff has not raised a single case where a 15 court applied then-Mitchell or now Kohn to determine whether a county sheriff, or similar 16 officer, as a policymaker, represented the county or state. Indeed, the Ninth Circuit actually 17 applied McMillian, not Mitchell, in Brewster v. Shasta County when it considered whether 18 a county sheriff represented the state or county when investigating crime. 275 F.3d 803, 19 805–06 (9th Cir. 2001) (finding the sheriff acts as a final policymaker for the county when 20 investigating crime within it). As such, the Court is persuaded that, limited to this inquiry 21 concerning whether a county sheriff as a policymaker represents the county or state in a 22 given function, McMillian’s continued use and application is proper. 23 Plaintiff challenged Defendant Martinez, in her official capacity, and her CCW 24 policy, alleging it violated the Second Amendment. [Compl. ¶ 48.] The Court thus finds 25 that McMillian, which Scocca relied upon, provides the appropriate and applicable 26 analytical framework in this case, not Kohn. Accordingly, the Court finds it committed no 27 error in its October 29, 2024 order and Plaintiff’s motion for reconsideration is DENIED. 28 1 D. Court Finds Certification of Interlocutory Appeal Unwarranted 2 With reconsideration denied, Plaintiff still seeks certification of the Eleventh 3 Amendment immunity issue for interlocutory appeal. [ECF No. 22-1, 9–10.] Without 4 providing any argument as to how, Plaintiff asserts that the 28 U.S.C. § 1292 standard is 5 met, and certification is warranted. [Id.] The Court disagrees. 6 “A final decision is one that ends the litigation on the merits and leaves nothing for 7 the court to do but execute the judgment.” United States v. Lummi Indian Tribe, 235 F.3d 8 443, 448 (9th Cir. 2000) (internal quotation marks omitted). Here, the Court dismissed 9 Plaintiff’s Second Amendment claim in its entirety without leave to amend. Although the 10 Court dismissed the First Amendment claim with leave to amend, Plaintiff did not amend 11 the complaint by the deadline the Court provided. Therefore, with litigation on the merits 12 over, the Court’s order constitutes a final appealable decision, not an interlocutory order. 13 Cf. Becerra v. Coca-Cola Co., 789 F.App’x 25, 25 (9th Cir. 2019) (“When an order 14 granting a motion to dismiss is without prejudice and with leave to amend, it is not a final 15 appealable order.”). 16 Even if the Court’s order to dismiss Plaintiff’s claim was interlocutory, both the 17 Supreme Court and Ninth Circuit are clear that when determining whether a sheriff is a 18 policymaker for the state or county for a given function, the analysis should be governed 19 by the framework in McMillian. The Court does not find, and Plaintiff does not offer, any 20 grounds for a difference of opinion on this issue. The Court finds that Plaintiff has failed 21 to meet his burden to warrant certification for an interlocutory appeal. In re Cement 22 Antitrust Litig., 673 F.2d at 1026. Plaintiff’s motion to certify an interlocutory appeal is 23 thus DENIED. 24 25 // 26 // 27 // 28 I Hl. CONCLUSION 2 For the above-stated reasons, Plaintiff's motion for reconsideration, motion to certify 3 interlocutory appeal, and request to amend the complaint and join the State of California 4 ||are all DENIED. The Court directs the Clerk of the Court to CLOSE the case. 5 It is SO ORDERED. 6 7 ||Dated: December 17, 2024 € Z 8 Hon. Cathy Ann Bencivengo ? United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28