Wang v. City of Cupertino

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JANE WANG, Case No. 22-cv-06822-BLF

8 Plaintiff, ORDER DENYING MOTION FOR 9 v. LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL 10 CITY OF CUPERTINO, et al.,

11 Defendants.

12 13 Before the Court is Plaintiff Jane Wang’s motion for leave to proceed in forma pauperis on 14 appeal. Having considered the motion, relevant law, and the record in this case, the Court hereby 15 CERTIFIES that the appeal is not taken in good faith, and therefore DENIES the motion. 16 Plaintiff Jane Wang brought this action pro se against Defendants the City of Cupertino 17 and Philip Willkomm. Ms. Wang alleged that Defendants violated her rights when they fined her 18 for, and ultimately removed, a playhouse in her backyard. On July 19, 2023, this Court granted 19 Defendants’ motion to dismiss without leave to amend on all federal claims and declined to 20 exercise supplemental jurisdiction over the state law claims. ECF No. 43. The Court then entered 21 judgment for Defendants. ECF No. 44. On August 14, 2023, Ms. Wang appealed the judgment to 22 the United States Court of Appeals for the Ninth Circuit. ECF No. 50. The appellate court 23 referred the appeal to this Court for the purpose of determining whether in forma pauperis status 24 should continue for this appeal or whether the appeal is frivolous or taken in bad faith. 25 “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it 26 is not taken in good faith.” 28 U.S.C. § 1915(a)(3). The test for allowing an appeal in forma 27 pauperis is easily met; the good faith requirement is satisfied if the appellant seeks review of any 1 Coppedge v. United States, 369 U.S. 438, 445 (1962)) (quotation marks omitted); see also Hooker 2 y. Am, Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (if at least one issue or claim is non-frivolous, 3 the appeal must proceed in forma pauperis as a whole). An action is frivolous “where it lacks an 4 arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). In other 5 || words, the term “frivolous,” as used in § 1915 and when applied to a complaint, “embraces not 6 || only the inarguable legal conclusion, but also the fanciful factual allegation.” Id. 7 Here, the Court finds that Plaintiff's appeal is not taken in good faith because it is 8 frivolous. As the Court explained in its order granting Defendants’ motion to dismiss, each one of 9 || Ms. Wang’s federal claims failed because either the claim did not properly allege sufficient facts, 10 || the claim was barred by issue preclusion, the statute of limitations had run for the claim, or the 11 corresponding statute had no private right of action to bring a claim. The Court expressly 12 || considered whether further amendment could cure the deficiencies and concluded that after three 5 13 failed attempts, including instructions from the Court regarding deficiencies in those attempts, 14 || further amendment would be futile. To the extent Ms. Wang seeks to appeal the Court’s 3 15 || judgment, the claim lacks an arguable basis in law. a 16 For the foregoing reasons, the Court CERTIFIES that Plaintiff’s appeal is not taken in 3 17 good faith. Plaintiff’s motion for leave to proceed in forma pauperis on appeal is therefore || penn. 19 IT IS SO ORDERED. 20 21 Dated: August 23, 2023

BETH LABSON FREEMAN 23 United States District Judge 24 25 26 27 28