[00:00:00] Speaker 02:
Good morning, your honors.

[00:00:01] Speaker 02:
May it please the court?

[00:00:02] Speaker 02:
My name is Ilana Cohn, and I represent Appellant City of Willett and City of Willett's code enforcement officer, Davey Bowles.

[00:00:14] Speaker 02:
I'd like to reserve two minutes for rebuttal.

[00:00:18] Speaker 02:
This is an appeal from the denial of qualified immunity as to City of Willett's official Davey Bowles arising out of the city's termination of water service

[00:00:30] Speaker 02:
to a property inhabited by Plaintiff Apoli, Mr. Gelber, who is a trespasser.

[00:00:37] Speaker 02:
Whether Mr. Bowles has qualified immunity is a two-prong analysis, and the Court has discretion as to which question to answer first.

[00:00:46] Speaker 02:
If I may, I'd like to start with the first question, which is whether Plaintiff has alleged a violation of his due process rights.

[00:00:57] Speaker 02:
Someone who occupies a vacant home without permission from the owner does not have the same rights as a lawful occupant.

[00:01:05] Speaker 02:
The central issue in this case is whether a trespasser who occupies a home without permission from the owner is entitled to the same protections regarding water service as a lawful occupant is.

[00:01:19] Speaker 03:
The city's entire argument is predicated on the fact that

[00:01:26] Speaker 03:
Mr. Gelber wasn't the title holder to the land.

[00:01:33] Speaker 03:
But can't you have exercise acts of ownership even without being the title holder?

[00:01:42] Speaker 03:
For example, as here, he was in the process of adverse possession of the land.

[00:01:50] Speaker 03:
He had taken steps to acquire ownership.

[00:01:54] Speaker 03:
He had paid the taxes, he had paid some $80,000 in improvements to the property, and your own ordinance in defining owner, I don't have it in front of me, includes acts of ownership.

[00:02:17] Speaker 03:
I can find the definition, I'm sure you're well aware of it.

[00:02:20] Speaker 03:
It doesn't require holding a,

[00:02:23] Speaker 03:
Title to the property Yes, your honor.

[00:02:27] Speaker 02:
So a couple things did you agree with okay?

[00:02:30] Speaker 03:
I found I found it so ownership Owner owner means the person's owning an interest in fee or the person in whose name the legal title to the property appears dot dot dot or

[00:02:52] Speaker 03:
exercising the person's in possession or exercising acts of ownership over the same for himself.

[00:03:01] Speaker 03:
So exercising acts of ownership is within the definition of owner in your own code.

[00:03:11] Speaker 02:
Your Honor, so first of all, our argument with regard to due process is that there was no property interest that was ever, he didn't have an entitlement

[00:03:21] Speaker 02:
This statute that's referred to that has the definition that's who you provide.

[00:03:25] Speaker 02:
That's who the city of bullets provides Water to is people that come within the definition of owner Well the definition of owner first of all it's vague and also it's not used anywhere in this code only later on where it talks about whether or not the city can go in who has to maintain the

[00:03:47] Speaker 03:
This is title 14, water service, chapter 1404, general provisions.

[00:03:55] Speaker 03:
You're saying that doesn't govern this case?

[00:03:58] Speaker 02:
I'm saying that there's nothing in that definition, there's nothing in that section that you refer to that describes, it doesn't reference an owner at all.

[00:04:08] Speaker 02:
So it's this definition that's there but it's not used later until,

[00:04:15] Speaker 02:
a completely different section that has to do with access to the meter and interest on deposit.

[00:04:24] Speaker 02:
No interest shall be paid.

[00:04:25] Speaker 03:
But it is used on the application form in order to get water.

[00:04:32] Speaker 03:
Yes.

[00:04:33] Speaker 03:
So why is it used on the application form?

[00:04:37] Speaker 02:
Well, it's used on the application form to signify

[00:04:41] Speaker 03:
Someone who has legal title and the definition where does it say that and anywhere in the ordinances or the regulations?

[00:04:51] Speaker 03:
Doesn't say that that's my whole point.

[00:04:53] Speaker 03:
We're back to where I started right, but the city views this like if you as if or Mr.. At least mr.. Who was the guy the manager who turned off the water they both falls, okay, so

[00:05:08] Speaker 03:
He views this as you have to have a legal title to the house, but that's not what your law says.

[00:05:18] Speaker 03:
And nowhere else does it say that's what owner means.

[00:05:24] Speaker 03:
Well, acts of ownership?

[00:05:26] Speaker 03:
That's the law of adverse possession, which is well recognized in the state of California.

[00:05:32] Speaker 03:
acts of ownership?

[00:05:33] Speaker 03:
Yes.

[00:05:34] Speaker 02:
Yes, but it's so vague in here, I don't think it can be said to suddenly convert him into somebody who has an entitlement.

[00:05:43] Speaker 03:
He's in the process.

[00:05:44] Speaker 03:
I mean, it's seven years of open and notorious continuous possession of the property, and that's what he was doing.

[00:05:51] Speaker 03:
He was open and notorious, possessing the property, paying the taxes, making improvements.

[00:05:59] Speaker 03:
It was just a matter of time.

[00:06:02] Speaker 02:
Well, actually, it's not before the court, but that never happened.

[00:06:06] Speaker 03:
The Deutsche Bank came in, so he never... That's not before the court, and so we're talking about what was in front of... I mean, you can't just go around not giving people notice you're going to turn off their water and turning it off.

[00:06:22] Speaker 03:
That's clear in light of Memphis Light's Supreme Court decision.

[00:06:27] Speaker 02:
Your Honor, as to Memphis Light, that's very different.

[00:06:31] Speaker 02:
I would say that that's very different because the issue in Memphis Light is that it was a homeowner and there was a specific ordinance that set forth the procedures as to how, what the city, there was a Texas law that said what could be done when you want to discontinue a water service or utilities for non-payment.

[00:06:54] Speaker 02:
It was completely spelled out.

[00:06:55] Speaker 02:
You couldn't do it for good cause.

[00:06:57] Speaker 02:
None of the cases ever, that none of the cases cited by Mr. Gelber or the court, none of the cases talk about somebody who has no right to begin with, who just comes in and trespasses and then somehow gets water turned on and then he has this entitlement.

[00:07:20] Speaker 02:
I would argue that Memphis Light doesn't apply here because Mr. Gelber never had the right to begin with.

[00:07:26] Speaker 02:
He wasn't the owner, and in order to have an entitlement, there has to be a statute or ordinance that restricts the agency's discretion or mandatory language.

[00:07:40] Speaker 02:
This is just a definition pulled out.

[00:07:42] Speaker 02:
It doesn't on its own.

[00:07:44] Speaker 03:
It's your ordinance governing water.

[00:07:47] Speaker 03:
It also has a section on discontinuance of service.

[00:07:50] Speaker 03:
And there's narrow circumstances in which the city's allowed to discontinue service without notice.

[00:08:03] Speaker 03:
Are you referring to?

[00:08:05] Speaker 03:
Section 14.32.130 Health and Safety Discontinuance of Service.

[00:08:23] Speaker 03:
I know you're not familiar with the ordinance, that's clear, but as a policy matter, isn't it in the city's interest to

[00:08:35] Speaker 03:
Have people come in and improve properties and take something that's falling to pieces and occupy it and improve it?

[00:08:44] Speaker 03:
I mean, to me, I just don't even understand why this happened.

[00:08:52] Speaker 02:
Well, this is, first of all, this is a very expansive, in my opinion, this is a very expansive reading of the case law at Memphis Light to suddenly apply it to someone who's trying to get a property.

[00:09:04] Speaker 02:
If you look at page 132 of the record, he has itemized all of his improvements.

[00:09:14] Speaker 02:
Over half were done after the water was shut off.

[00:09:18] Speaker 02:
He's in there voluntarily.

[00:09:19] Speaker 02:
He wants to steal a property.

[00:09:21] Speaker 02:
He wants to get a property.

[00:09:22] Speaker 03:
He's not stealing a property.

[00:09:24] Speaker 03:
This is well legally, it's a legal process well recognized in the state of California and elsewhere.

[00:09:34] Speaker 02:
I understand, Your Honor, but I don't believe... You did take property law, right?

[00:09:37] Speaker 02:
I did take property law.

[00:09:40] Speaker 02:
Learned about adverse possession if you were California.

[00:09:43] Speaker 02:
I did, I did.

[00:09:43] Speaker 02:
I thought it was five years though, maybe.

[00:09:45] Speaker 02:
I don't know.

[00:09:46] Speaker 02:
I thought it was seven, but you know.

[00:09:48] Speaker 02:
Okay, so I don't see anywhere in any of the... Okay, I understand your argument.

[00:09:56] Speaker 03:
You're saying you think that... I think the right...

[00:10:04] Speaker 03:
is currently established, but, okay, maybe Mr. Bowles didn't recognize it as applying to someone who lacked a title, which seems to be your argument today.

[00:10:25] Speaker 03:
Well, but does that mean it's not currently established?

[00:10:29] Speaker 02:
Yeah, so there's a couple things.

[00:10:31] Speaker 02:
In terms of whether he had a due process right to begin with, Appellee has cited a statute that doesn't even apply to him.

[00:10:40] Speaker 02:
He cited a state code.

[00:10:42] Speaker 02:
It has mandatory language.

[00:10:43] Speaker 02:
It limits discretion.

[00:10:44] Speaker 02:
But it has to do with non-payment.

[00:10:46] Speaker 02:
He paid all his bills.

[00:10:48] Speaker 02:
So that doesn't apply.

[00:10:49] Speaker 02:
He also cited a few.

[00:10:51] Speaker 02:
He didn't cite the owner.

[00:10:52] Speaker 02:
He cites the definition of owner and customer later in the argument regarding clearly established.

[00:11:00] Speaker 02:
So if you have a case that's Memphis Light that talks only about whether a municipality can turn off discontinued water service to homeowners,

[00:11:14] Speaker 02:
For non-payment and you have to try to find I don't know some something in the code here and a definition there that shows you it's not clearly established No, I mean to someone who's managing this they it's clearly established in the city code Right.

[00:11:32] Speaker 03:
I mean, what do you look to if you're I mean you think you give it some thought the guy's paying for the water so you can't cut him off for that why wouldn't you give notice and

[00:11:44] Speaker 02:
Well, they gave notice in the form of the letter saying you have to provide, it's come to our attention that you don't, you're not the owner or the tenant, you have to provide it.

[00:11:54] Speaker 02:
And he didn't provide it.

[00:11:55] Speaker 02:
There was nothing that was going to be further developed in any hearing anyway.

[00:12:00] Speaker 02:
He's always stuck to his position that he was trying to get the property by adverse possession.

[00:12:08] Speaker 02:
But going back to, the ordinance only talks about disconnecting

[00:12:13] Speaker 02:
water when there's non-payment in certain limited circumstances.

[00:12:17] Speaker 02:
It doesn't say anything about what to do

[00:12:19] Speaker 02:
when you have a property and someone's moved in and it's owned by someone else, it doesn't say anything about how you disconnect that.

[00:12:28] Speaker 02:
And that's why the law's not clearly established.

[00:12:30] Speaker 02:
I would argue that there's nothing.

[00:12:32] Speaker 00:
Ms.

[00:12:32] Speaker 00:
Cohen, do you have any regulations in writing in the city of Willis that tell you that the water department can cut off water if they determine that the customer is a trespasser?

[00:12:49] Speaker 02:
There is nothing in the code, your honor.

[00:12:50] Speaker 00:
So where is the policy of the city of Willets that allows them to do this?

[00:12:59] Speaker 02:
Well, that's outside of the, you know, that's going to be, there is no policy, but that's not, assuming for the purposes of what he's alleged, that there is a policy that we did that.

[00:13:11] Speaker 03:
Wait, I think the question was, is there a policy, is there something in writing?

[00:13:16] Speaker 02:
No.

[00:13:17] Speaker 03:
In talents due to do this?

[00:13:18] Speaker 02:
There's nothing in writing that says what to do in a situation where someone's moved into a property and they somehow got their water turned on.

[00:13:26] Speaker 00:
There isn't.

[00:13:27] Speaker 00:
This is just a civil servant who decides that for the benefit of the community, this trespasser should not have water.

[00:13:35] Speaker 02:
Well, based on the code and what it says.

[00:13:38] Speaker 02:
What in the code?

[00:13:39] Speaker 02:
Well, the code section describes the limited, describes when you can, I mean, it's California law and it's in the code that you can't just shut off someone's water when they don't pay.

[00:13:49] Speaker 02:
The civil servant wouldn't think that would apply to him because he's somehow starting to pay.

[00:13:54] Speaker 02:
So that wouldn't be the procedure that he would think would be followed.

[00:13:57] Speaker 02:
He didn't believe that Mr. Gelber had right to the service to begin with.

[00:14:04] Speaker 01:
Did you say that it's your belief there's no policy of not providing water to trespassers?

[00:14:12] Speaker 02:
There's no policy of shutting off water to people, there's no policy to shut, there's no policy of shutting off water when you have someone who is a trespasser who got the water, because it doesn't happen.

[00:14:24] Speaker 02:
But they're paying for the water.

[00:14:26] Speaker 02:
When they're paying for the water.

[00:14:28] Speaker 01:
But there is a policy of not providing water to trespassers.

[00:14:34] Speaker 02:
There's no written policy of not providing water to trespassers.

[00:14:40] Speaker 00:
Is there an unwritten policy that everybody knows about?

[00:14:46] Speaker 02:
That I'm not sure.

[00:14:48] Speaker 01:
It's not alleged in the... The city's application for water service asks three questions.

[00:14:54] Speaker 01:
One says, are you an owner, renter, or an agent?

[00:14:57] Speaker 01:
Isn't that a policy?

[00:14:59] Speaker 02:
There is a policy of requesting at the outset.

[00:15:02] Speaker 02:
There is an unwritten, but it is a practice that when someone comes in to get their water turned on, they must show proof of ownership or tenancy.

[00:15:13] Speaker 02:
We don't know why it didn't happen in Mr. Gilbert.

[00:15:15] Speaker 03:
If they have to show proof, it just seems like they just check a box.

[00:15:21] Speaker 02:
on the application, it may just say check a box.

[00:15:24] Speaker 02:
But I believe he's alleged what the city told him, which is there is a policy of requesting it.

[00:15:31] Speaker 02:
Right.

[00:15:31] Speaker 03:
And he fits within the definition of owner in the code.

[00:15:37] Speaker 02:
I don't think that this, I mean, I don't believe that he does.

[00:15:41] Speaker 03:
Acts of ownership.

[00:15:42] Speaker 03:
I mean, under adverse possession, these are the acts of ownership.

[00:15:48] Speaker 03:
toward getting a possessory interest?

[00:15:52] Speaker 02:
Well, the acts of ownership, it's just not clear that that's what it means.

[00:15:56] Speaker 02:
It's not clear to the civil servant.

[00:15:58] Speaker 02:
Is going out and getting a mortgage or applying for that could be an act of ownership.

[00:16:04] Speaker 02:
I'm trying to get a loan for my property.

[00:16:07] Speaker 02:
It's very vague.

[00:16:08] Speaker 03:
Paying taxes?

[00:16:10] Speaker 03:
Paying for your water, paying taxes, improving the property are not acts of ownership in your mind?

[00:16:15] Speaker 02:
I think based on the statute and the fact that based on the ordinance and how it falls in and how owner doesn't come up anywhere else, I don't think that acts of ownership was intended to include somebody who moves into a property and starts deciding to claim it's theirs.

[00:16:35] Speaker 03:
Okay, you're over your time council.

[00:16:56] Speaker 04:
Good morning.

[00:16:58] Speaker 04:
Alani Slabo, Brian Cave, Leighton Paisner, on behalf of plaintiff appellee, Craig Gilbert.

[00:17:03] Speaker 04:
This court should affirm the district court.

[00:17:05] Speaker 04:
In California, a water service customer has a legitimate claim of entitlement to that service, such that due process guarantees must apply before water service is terminated.

[00:17:16] Speaker 00:
What case is that?

[00:17:17] Speaker 04:
In California, Perez says that.

[00:17:19] Speaker 04:
Perez says that because California law requires good cause, Memphis Light applies in California to water service termination circumstances.

[00:17:27] Speaker 00:
Say that again.

[00:17:28] Speaker 04:
Perez says that because California law requires good cause before termination of water service in California, Memphis Light applies before termination in this state.

[00:17:38] Speaker 00:
And why isn't cutting off the water to a trespasser good cause?

[00:17:44] Speaker 04:
It might be Judge Bayette, but the point is that if it is good cause, the conversation needs to happen at the hearing, the one that Mr. Galbraith didn't receive.

[00:17:51] Speaker 04:
So due process is still violated, even if Ms.

[00:17:54] Speaker 04:
Cohn comes up here and argues that they did have good cause.

[00:17:57] Speaker 00:
You mean the Water Department can't consider good cause by itself without noticing a hearing before court?

[00:18:06] Speaker 04:
That's exactly right, Your Honor.

[00:18:07] Speaker 04:
That's what Memphis Light says.

[00:18:08] Speaker 04:
That's what the due process cases post-Roth say.

[00:18:10] Speaker 00:
Memphis Light was involved a statute

[00:18:14] Speaker 00:
exactly opposite to the statute that we have in California.

[00:18:19] Speaker 00:
In Memphis Light, they said that you can't turn off the water or the utilities unless it's for non-payment, right?

[00:18:33] Speaker 04:
My understanding, if I remember correctly, the Supreme Court in Memphis looked to case law and the case law said for cause in one of those situations is non-payment.

[00:18:41] Speaker 00:
Yes.

[00:18:42] Speaker 00:
In California, the one thing that you can't use to turn off the water is non-payment unless you go through all the steps.

[00:18:51] Speaker 00:
But there's no limitation as to why you can't turn off the water for other reasons, other than what you say Paris has in good cause.

[00:19:02] Speaker 00:
And the question is,

[00:19:04] Speaker 00:
Isn't prohibition of water to a trespasser in the mind of the civil servant good cause?

[00:19:11] Speaker 04:
So two points I think, Judge.

[00:19:13] Speaker 04:
One, whether it was good cause in the mind of Bowles is irrelevant given that we're looking at an objective standard here.

[00:19:20] Speaker 04:
But two, again, even if it's true that it was good cause, that doesn't obviate the need for hearing.

[00:19:26] Speaker 04:
Matthews versus Eldridge

[00:19:28] Speaker 03:
Fuentes they all say that undisputed property ownership is not necessary wouldn't there first been some kind of hearing before the

[00:19:36] Speaker 03:
Water Board, I mean, I don't know how Willits is organized, but I don't even know where Willits is.

[00:19:43] Speaker 04:
Mendocino.

[00:19:44] Speaker 03:
Mendocino, okay.

[00:19:45] Speaker 03:
Wouldn't there be some kind of hearing or, you know, administrative process in which the cause would be determined?

[00:19:52] Speaker 03:
Exactly.

[00:19:53] Speaker 03:
It would be later contested in the courts if it had to.

[00:19:56] Speaker 03:
But there wasn't a determination, there doesn't seem to have been a determination by the city

[00:20:05] Speaker 03:
separate from Mr. Bowles that good cause includes That you're a trespasser that you don't have legal title like the that's Basically what you're asking for here exactly and one other thing that we're at the 12b6 stage, right?

[00:20:25] Speaker 03:
Yes, we are your honor does the plaintiff and in trying to state their claim have to refute and

[00:20:33] Speaker 03:
Existence of qualified immunity or not no they do not your honor We cited cases to that point in our brief right because council for the others for willets Got up and started talking about qualified immunity and the prongs and all of that But that's not even an issue at this stage of the proceeding right correct They might you put that as an affirmative defense in their answer when they answer The the complaint, but they haven't had the opportunity to do so yet

[00:21:03] Speaker 04:
Well, actually, they have, and it's in there.

[00:21:05] Speaker 04:
But I take your point still the same, that Mr. Galbraith didn't need to anticipate in his complaint that they were going to assert qualified immunity.

[00:21:13] Speaker 04:
But I want to go back to the customer point again.

[00:21:17] Speaker 04:
My friend, Ms.

[00:21:17] Speaker 04:
Cohn,

[00:21:18] Speaker 04:
said that Memphis Light in Perez and the cases required Mr. Galbraith to be a title holder or renter.

[00:21:24] Speaker 04:
That's not true.

[00:21:25] Speaker 04:
You can read Memphis Light.

[00:21:26] Speaker 04:
Memphis Light is focused solely on the status of utility customers.

[00:21:31] Speaker 04:
I read Memphis Light yesterday, counted myself, the majority opinion mentions utility customers about 50 times, owner and homeowner show up four.

[00:21:38] Speaker 04:
They don't show up at all in Perez.

[00:21:40] Speaker 04:
So I think that distinction is meaningless and we can go even further as the presiding judge noted,

[00:21:48] Speaker 04:
Even if ownership was required, Mr. Gelber met the definition of owner under the city's own code.

[00:21:55] Speaker 04:
He exercised acts of ownership, paid $70 something dollars to improve this home, paid the property taxes, paid, applied for, and received water service.

[00:22:03] Speaker 04:
So I think he exercised acts of ownership enough to meet that definition, even if ownership was required, which again, we don't think it was.

[00:22:13] Speaker 04:
Turning to clearly established law, actually, sorry, one more point on constitutional violation.

[00:22:19] Speaker 04:
I want to point out again that Fuentes and Memphis Light Sites Fuentes says that undisputed property ownership is not necessary for due process to kick in.

[00:22:29] Speaker 04:
So the argument the city is making that Mr. Gelber needed title to the property, not only wrong, but again, even if it was right, it did not need to be undisputed.

[00:22:40] Speaker 04:
Just the legitimate claim of entitlement to the water service

[00:22:43] Speaker 04:
was enough for due process to kick in and for him to have adequate notice and opportunity to be heard.

[00:22:50] Speaker 04:
Turning to constitutional violation, I'm sorry, clearly established law.

[00:22:54] Speaker 04:
Memphis Light clearly established that where state law restricts the government's right to terminate utility services at will, due process guarantees the right, adequate notice and the right to be heard must be satisfied.

[00:23:08] Speaker 00:
That wasn't exactly the holding.

[00:23:10] Speaker 00:
It said where the

[00:23:13] Speaker 00:
Termination can only be done for non-payment, right?

[00:23:18] Speaker 00:
Then you have a right if you paid.

[00:23:20] Speaker 00:
But that's exactly contrary to California law.

[00:23:24] Speaker 00:
California law does not restrict the discretion of the municipal utility to terminate water except for non-payment.

[00:23:38] Speaker 00:
That's the only restriction that I can see

[00:23:41] Speaker 00:
on the termination right of a utility in California.

[00:23:45] Speaker 04:
So I guess it depends on which source of entitlement you're pointing to.

[00:23:49] Speaker 04:
If you're looking to Paris, that's not how we read Paris, right?

[00:23:52] Speaker 04:
Paris says good cause means not at will.

[00:23:57] Speaker 04:
And so because it's not at will, Memphis Light applies.

[00:24:00] Speaker 04:
If you're looking at the California statutes we cited, those are sort of secondary sources of entitlement.

[00:24:05] Speaker 04:
We think Paris answers the question.

[00:24:08] Speaker 04:
But the California statutes, the Willis statutes that he says are the source of entitlements are sort of secondary to the Paris case itself.

[00:24:19] Speaker 04:
So back to clearly established law, since Memphis Light, other courts have recognized using Memphis Light that a legitimate claim of entitlement to continued utility services is protected by due process.

[00:24:31] Speaker 04:
We cited three in our brief, one from the Sixth Circuit, one from the second, and one from the third.

[00:24:39] Speaker 04:
bulls claims that memphis like cannot be clearly established law because galbert has an identified a case that's on all fours with his but he didn't need to uh... the supreme court has rejected the notion that qualified immunity applies why are we talking about qualified immunity that comes up at the summary judgment stage well i'm sorry on it because

[00:25:00] Speaker 04:
Qualified immunity was considered in the motion to dismiss was a basis that Bowles argued was a reason to dismiss the case altogether, or at least the 1983 claim against him.

[00:25:15] Speaker 04:
That you don't need a case on all fours makes sense.

[00:25:19] Speaker 04:
Some distinctions can always be drawn between precedent and the current case.

[00:25:24] Speaker 04:
The issue is whether the distinctions are sufficiently material, such that the precedent

[00:25:29] Speaker 04:
does not clearly establish the unlawfulness of the conduct.

[00:25:34] Speaker 04:
That Mr. Gelber was attempting adverse possession is not material.

[00:25:38] Speaker 04:
None of the sources that we cite in our brief, none of the sources that are in his complaint, required him to own or to rent the property.

[00:25:47] Speaker 04:
And the fact that he was an adverse possessor did not prevent him and did not prevent the city from voluntarily giving him water service in the first place.

[00:25:55] Speaker 01:
But if I may interrupt, you know, our qualified immunity cases say it protects all but the plainly incompetent.

[00:26:02] Speaker 01:
And you could see a city official thinking, okay, this person's not an owner, not a renter, a trespasser, adverse possessor.

[00:26:11] Speaker 01:
I can cut off water service.

[00:26:13] Speaker 01:
I mean, it seems reasonable for a city official to assume that, that it's not a violation of the law.

[00:26:20] Speaker 04:
I don't think so.

[00:26:21] Speaker 04:
Because again, if you read Memphis Light,

[00:26:24] Speaker 04:
It's obvious the focus is on utility customers.

[00:26:26] Speaker 04:
If the Supreme Court meant only to protect title holders, it would have said title holders.

[00:26:30] Speaker 04:
But it repeated repeatedly that the status of the crafts as utility customers gave them due process.

[00:26:36] Speaker 04:
I also think if you read Memphis Light and you read the section that brings up Fuentes that mentions that undisputed property ownership is not necessary, that also gives you the sense that

[00:26:46] Speaker 04:
What Memphis Light is protecting is the erroneous deprivation of water service despite the city's cause and that notice and an opportunity to be heard must come first.

[00:26:57] Speaker 01:
Does your argument depend on the fact that Mr. Gilbert paid property taxes and improved the property?

[00:27:05] Speaker 01:
Suppose it was just someone who came in and claimed this is my property and I want water service.

[00:27:11] Speaker 01:
He's not improving the property.

[00:27:13] Speaker 01:
if I may assume paying property tax is minimal, not improving it, but just your more classic trespasser?

[00:27:22] Speaker 04:
I think, excuse me, I think our case, yes, I think our case makes the question a lot easier to answer.

[00:27:29] Speaker 04:
To distinguish the analogy you just gave or the hypothetical you just gave of the individual walking onto property, yes, that individual would not have the acts of ownership that Mr. Galbra has, but more importantly,

[00:27:42] Speaker 04:
That individual would not have the voluntary conferral of the legitimate claim of entitlement by the city.

[00:27:47] Speaker 04:
The city, of course, decides who to give this benefit to.

[00:27:50] Speaker 04:
Here, the city gave it to Mr. Gelber.

[00:27:53] Speaker 04:
Despite no constitutional obligation to give him water service, they gave it to him.

[00:27:57] Speaker 04:
And once they did,

[00:27:59] Speaker 04:
due process kicked in.

[00:28:00] Speaker 00:
So that situation... Pardon me, counsel.

[00:28:02] Speaker 00:
I'm having difficulty understanding what facts have to be shown at a hearing to show an objective basis for denying the water, where it's stipulated here, it's undisputed in this case, that he was a trespasser.

[00:28:18] Speaker 04:
So let me restate the question.

[00:28:20] Speaker 04:
Hopefully I've got it right.

[00:28:22] Speaker 04:
You're asking me what would need to be shown at a hearing to prove good cause?

[00:28:26] Speaker 04:
Good cause.

[00:28:29] Speaker 04:
I think it could be little more than Mr. Gelber, the city of Willets, requires only title holders or renters.

[00:28:36] Speaker 00:
No, that's a legal argument.

[00:28:38] Speaker 00:
This man is a trespasser.

[00:28:42] Speaker 00:
He's an admitted trespasser at this point because he doesn't have adverse possession title.

[00:28:48] Speaker 00:
And why can't the city of Willett, without a hearing, without anything else, say we don't want to provide water to trespassers?

[00:28:57] Speaker 00:
That's within our discretion.

[00:28:59] Speaker 00:
We can't cut it off for non-payment, but we can cut it off for trespassers.

[00:29:04] Speaker 00:
What's wrong with that?

[00:29:06] Speaker 04:
Our reading of the case law and the reading of Memphis Light precludes exactly that.

[00:29:11] Speaker 04:
I think if we're looking at Matthews v. Eldridge, the line of cases post-1970s,

[00:29:17] Speaker 04:
from the Supreme Court, due process protects individuals who have an entitlement, even if an official believes that entitlement is based in fraud or misrepresentation.

[00:29:27] Speaker 00:
But it's not only the official that believes it.

[00:29:29] Speaker 00:
It's Mr. Gelber who believes it.

[00:29:31] Speaker 00:
He's the trespasser.

[00:29:33] Speaker 00:
He admits that, doesn't he?

[00:29:34] Speaker 04:
He admits that he was adverse to possessing the property, but he says in his complaint that he did not misrepresent himself and cites the Willard's definition of owner to prove that.

[00:29:43] Speaker 04:
He fits the Willard's definition of owner

[00:29:45] Speaker 04:
because he exercised acts of ownership over the property for himself, which conforms with California state courts, the California Supreme Court's explanation and definition of what adverse possession is.

[00:29:58] Speaker 04:
Turning back to Memphis Light and clearly established law, as far as we're aware, there's no court that's limited Memphis Light to just non-payment.

[00:30:08] Speaker 04:
In fact, we cited a case in our brief, Johnson, the case out of the Sixth Circuit, that applied Memphis Light to a situation in which

[00:30:15] Speaker 04:
Officials in the city of sag and all terminated water service after a gang related shooting so having nothing to do with payment or trespass or any of the facts in Memphis light So when considering the material facts the cases we cited are not meaningful to distinguishable each involved a customer that had a legitimate claim of entitlement to service and that service was terminated without due process and

[00:30:38] Speaker 01:
But if I can ask you one question, just assume for purposes of this question that Mr. Gilbert gets qualified immunity based on the second prong.

[00:30:47] Speaker 01:
What happens with the Monell claims and the state claims against the city?

[00:30:52] Speaker 04:
If he gets, so you said if he gets, if Bowles is entitled to qualified immunity because there's no clearly established law, nothing happens to Monell claims because this court wouldn't have jurisdiction because that decision would not necessarily resolve the Monell claim.

[00:31:04] Speaker 04:
Only if you find that there's no constitutional violation

[00:31:07] Speaker 04:
Would the Minnell claim go away?

[00:31:10] Speaker 04:
No decision from this court should affect the state contract law claims.

[00:31:14] Speaker 04:
With the 40 seconds I have left, I could just touch on the sufficiency of the complaint, which I don't think my friend, Ms.

[00:31:20] Speaker 04:
Cohn, mentioned.

[00:31:21] Speaker 04:
We believe Bowles abandoned that argument.

[00:31:24] Speaker 04:
It's all foam, no beer.

[00:31:28] Speaker 04:
In the brief, he doesn't specify the grounds for the result he wants.

[00:31:32] Speaker 04:
It's not clear why he believes Gelber's complaint is insufficient.

[00:31:36] Speaker 04:
In any event, if you look at the three requirements in his complaint, he states that he had a protective property interest in water service.

[00:31:43] Speaker 04:
He states that Bowles is the one who deprived him of that interest, and he alleges that there was a lack of process, that he had inadequate notice, and he didn't get the opportunity to be heard.

[00:31:53] Speaker 04:
In conclusion, the city of Willets did not have a constitutional obligation to give Mr. Galba water service.

[00:32:00] Speaker 04:
But once they voluntarily chose to do so, they could not terminate that service without due process.

[00:32:06] Speaker 04:
This court should affirm the district court.

[00:32:08] Speaker 04:
Thank you very much.

[00:32:08] Speaker 03:
Thank you very much, counsel.

[00:32:12] Speaker 03:
Gelber versus City of Willets is submitted.

[00:32:18] Speaker 03:
Oh, did you?

[00:32:20] Speaker 03:
Oh, you did.

[00:32:22] Speaker 03:
Okay.

[00:32:22] Speaker 03:
I'm sorry.

[00:32:23] Speaker 03:
I didn't mean to cut you off at all.

[00:32:29] Speaker 03:
No, I'm sorry.

[00:32:30] Speaker 03:
I didn't realize you had time left.

[00:32:32] Speaker 02:
Okay, just address.

[00:32:33] Speaker 02:
Thank you, Your Honor.

[00:32:34] Speaker 03:
It's okay.

[00:32:35] Speaker 03:
I didn't realize you didn't have time left because you didn't have time left, but I will give you two minutes anyway.

[00:32:42] Speaker 02:
Oh, okay.

[00:32:43] Speaker 02:
I apologize for that.

[00:32:44] Speaker 02:
No, no.

[00:32:46] Speaker 02:
It's okay.

[00:32:47] Speaker 02:
So just as an initial matter, qualified immunity can be decided at the motion to dismiss stage where it appears on the face.

[00:32:55] Speaker 02:
of the complaint, and it does.

[00:32:56] Speaker 02:
It's a really simple issue.

[00:32:58] Speaker 02:
Did someone in Mr. Gelber's shoes have, you know, was the law clearly established such that a reasonable official would understand that what they're doing violates the law?

[00:33:08] Speaker 02:
And there's no other facts really that aren't stated.

[00:33:11] Speaker 02:
I mean, the facts are stated in the complaint, and the purpose of qualified immunity is to, you know, you lose the immunity if it's not decided at the earliest possible stage, which I believe we could.

[00:33:25] Speaker 02:
do here based on what's alleged in the complaint.

[00:33:28] Speaker 02:
With respect to my council's argument regarding Fuentes, first of all I would just say Fuentes is completely different in our opinion.

[00:33:39] Speaker 02:
Fuentes was people who were purchasing goods in a financing agreement and while they didn't have legal title yet,

[00:33:48] Speaker 02:
they did have the right to possession.

[00:33:50] Speaker 02:
They had the right to possession under the sales contracts.

[00:33:54] Speaker 02:
So the fact that the court said you don't need legal title to be afforded due process, it's not relevant, it's not applicable to our case because it's a very different situation.

[00:34:07] Speaker 02:
The court also said, you know, they entered into this financing agreement, they paid a higher price, they had a right to possession.

[00:34:13] Speaker 02:
Mr. Gelber didn't have a right to possession.

[00:34:16] Speaker 02:
And with respect to qualified immunity, it doesn't need to be an identical case.

[00:34:22] Speaker 02:
That's right, it doesn't.

[00:34:24] Speaker 02:
But it has to be sufficiently clear that somebody knows, that an official knows that they are violating a clear command of the law.

[00:34:33] Speaker 02:
There's none of the cases, whether they use the word customer but don't define it, every single... It's a reasonable, it's an objective standard.

[00:34:42] Speaker 02:
Correct.

[00:34:42] Speaker 02:
It's an objective standard, but there has to be controlling authority that lets the reasonable official know that what they're doing is wrong and is a violation of someone's constitutional rights.

[00:34:56] Speaker 02:
And in this case, you know, Perez also was a homeowner, which you can tell in Mosk's dissent at page 897.

[00:35:04] Speaker 02:
Perez is about remedies that the city has against

[00:35:09] Speaker 02:
when someone hasn't paid their utility bill.

[00:35:13] Speaker 02:
And Justice Mosk said in the dissent, the city has remedies to employ against a recalcitrant homeowner.

[00:35:21] Speaker 02:
None of the cases that plaintiff has cited, even the one that he cited at the Saginaw case, she was a property owner and a business owner.

[00:35:31] Speaker 02:
I don't believe that this meets the specificity test to say a customer has a right to continue water service, is entitled to due process before water service is shut off.

[00:35:46] Speaker 02:
That's the high level of generality that this court and also the Supreme Court has said is not proper when you're determining qualified immunity.

[00:35:55] Speaker 02:
Okay, so now you're over.

[00:35:58] Speaker 02:
Okay, thank you.

[00:36:00] Speaker 03:
Okay, thank you very much.

[00:36:02] Speaker 03:
Gelber versus Willetts will be submitted.