[00:00:00] Speaker 00:
We take both sides for the argument.

[00:00:02] Speaker 00:
In the case of Go Manicipate, a fee bond is submitted.

[00:01:49] Speaker 03:
brief things that we would want to say, so I'm gonna just hit a few points.

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administrative decision, but that's not what the district court did here.

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The district court plainly applied preclusion because of the California Court of Appeal decision.

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That's fundamentally different.

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So why is it that a California Court of Appeal decision can't be recognized for preclusion purposes?

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The facts of the case tell us why.

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The California Court of Appeal, Justice Collins,

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rendered a decision overturning factual findings by the state court judge in favor.

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We're not an appeals court.

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We're not the California Supreme Court.

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that the Court of Appeal decision ordered the state court judge to make certain factual findings that the state court judge hadn't yet found.

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So yes, it reversed the state court judge and remanded back to the state court judge.

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The problem with relying on the Court of Appeal decision is that

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administrative act practice precludes the introduction of those facts.

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So yes, there is a court of appeal decision.

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And yes, it was remanded back to the state court trial judge.

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But the state court trial judge was bound by existing law and facts not to let my client introduce those evidence at the state court hearing.

[00:04:29] Speaker 01:
It sounds like you're telling us that you think that the California court got it wrong.

[00:04:34] Speaker 01:
And so you didn't go to the California Supreme Court.

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Yes.

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But how would we get at them?

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We've got an issue-proclusion problem, so that's really all we've got on before, I say.

[00:05:06] Speaker 01:
Mm-hmm.

[00:05:08] Speaker 01:
The... Were you prevented?

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That's, I think that's why the district court asked you several times.

[00:05:14] Speaker 01:
I think she asked you several times.

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Yes.

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officers and high powered politicians.

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We had public record act requests subsequently which showed that they were biased and it was an unfair administrative hearing and we couldn't introduce those in front of the state court judge despite the reversal by the court of appeal.

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We were barred by introducing

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the district court heard the Knudsen case, but the Clark case came up after the district court ruled.

[00:07:00] Speaker 01:
So the part of this that you couldn't bring forward in the district court was Clark.

[00:07:24] Speaker 03:
They've looked, I mean, there hasn't been an argument that due process is different in California state court than it is here.

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And basically, it still sounds to me like you're re-arguing the decision made by the California courts.

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But that doesn't solve the preclusion problem.

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What gets us out of being bound by the decision

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decided differently.

[00:08:05] Speaker 03:
I mean, I'm sort of excited because I understand the problem that your clients, that the grievance your clients are asserting, but I don't know how it is that weakens this, say, to the California court decision that didn't count anymore.

[00:08:20] Speaker 03:
Okay.

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I got my notes here.

[00:08:24] Speaker 03:
Jangua versus Newfield.

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It's a Ninth Circuit case, 933.

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However, the issue is not identical.

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the point I want to make to the panel.

[00:09:40] Speaker 03:
Jan Ward tells us there was a full and fair opportunity to litigate the issue that is the basis for issue preclusion and that was a fat part of my opening brief that my client was denied the ability to litigate that issue because the state court trial judge would not admit the evidence that was responsive to the court

[00:10:06] Speaker 03:
the fact that we're issue precluded by a court of appeal decision, because my client was not given a full and fair opportunity to litigate the issue.

[00:10:16] Speaker 03:
Evidence that it- Proclusion is a legal question.

[00:10:20] Speaker 03:
Pleading facts doesn't necessarily solve your problem.

[00:10:25] Speaker 03:
I'm still, I mean, you can tell me that we didn't get a chance at discovery, but that's something you told the California court.

[00:10:32] Speaker 03:
You did in fact get some additional documents that

[00:10:49] Speaker 03:
in the state court trial, Judge Mary Strobel, wouldn't let my client admit it.

[00:10:54] Speaker 03:
That's it.

[00:10:55] Speaker 03:
What is it?

[00:10:55] Speaker 03:
You haven't shown it to us.

[00:10:57] Speaker 03:
I apologize, sir.

[00:10:58] Speaker 03:
You haven't shown it to us.

[00:10:59] Speaker 03:
I mean, I was kind of waiting as I read your brief.

[00:11:02] Speaker 03:
Show us the smoking gun that would have turned the tables, and I never saw it.

[00:11:07] Speaker 03:
Did I miss something?

[00:11:08] Speaker 03:
Yes, I believe so.

[00:11:09] Speaker 03:
And my complaint that's on appeal now, I thought that... No, no, no, no.

[00:11:12] Speaker 03:
You're briefed to us.

[00:11:13] Speaker 03:
You had an opportunity to tell us why it was.

[00:11:20] Speaker 03:
And I heard talk, although it wasn't, I didn't think highlighted quite as much as you've suggested, but I did hear quite a lot about discovery being limited.

[00:11:30] Speaker 03:
And I also heard something about trying to have documents admitted that only a few were admitted.

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So here's your chance to hold up a document and say, this document would have made a difference, and I never saw that.

[00:11:52] Speaker 03:
I pled, I pled.

[00:11:54] Speaker 03:
Sullivan pled that the Board of Public Works administrators who denied my client their building permit were contacted by the United States House of Representatives, a United States House of Representative, rule to pull my client's building permit.

[00:12:11] Speaker 03:
The mayor's office, the council member's office,

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contacted the Board of Public Works to rule against my client, and that is evidence that the state court trial judge would not entertain.

[00:12:27] Speaker 03:
I'm trying to now focus specifically on your question, Judge Clifford.

[00:12:31] Speaker 03:
Well, okay, point to what document you held up to us that says this is the smoking gun, or this is going to make a difference, because telling me that people contacted other public officials

[00:12:47] Speaker 03:
it really took to make that a due process violation.

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It may have taken what you thought was a restrictive view, but it took that view.

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And that doesn't tell me why issue preclusion doesn't apply.

[00:13:08] Speaker 03:
What's in my brief?

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You can hold it up to me now.

[00:13:17] Speaker 03:
Is there something in the record that you can point me to that would illustrate the concern of EXPRESS, which is what is it about all this additional information that would have made a difference?

[00:13:32] Speaker 03:
As I look at the California Court of Appeal decision, it seemed to me to be mostly based on law, its perception of what had to be established to make out a due process violation.

[00:14:08] Speaker 03:
that first of all we have the building permits were pulled.

[00:14:13] Speaker 03:
Council member Hayden's remarks that they should be pulled because they're Persian, that's kind of offensive.

[00:14:22] Speaker 03:
That was not presented to the state court judge or the court of appeal.

[00:14:49] Speaker 03:
It came from the California Public Records Act request.

[00:14:54] Speaker 03:
I'm going to reserve my right to add that to rebuttal.

[00:14:57] Speaker 03:
Let me look at my file here.

[00:14:59] Speaker 03:
Okay?

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Let me see if I have anything else to say.

[00:15:03] Speaker 03:
In kind of broadly speaking, my client initially filed in federal court.

[00:15:48] Speaker 03:
which is a one-year-old Ninth Circuit.

[00:15:52] Speaker ?:
Let me go.

[00:15:52] Speaker ?:
Okay.

[00:15:53] Speaker 03:
We'll hear from the other side.

[00:16:00] Speaker 02:
Good morning, Your Honors.

[00:16:01] Speaker 02:
Charles Sewell for Bellevue City of Los Angeles.

[00:16:05] Speaker 02:
On the Jim Gauchin matter, that case and Utah construction and the other cases they cited in that regard, those applied to unreviewed administrative decisions.

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he was alluding to.

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And that's when you're forced to, you have an unreviewed state decision and you're forced to take it to a writ before you can go to federal court.

[00:16:33] Speaker 02:
And that's not what happened here.

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This is issue preclusion based on a state court judgment.

[00:16:38] Speaker 02:
And in this matter, they first filed in federal court.

[00:16:41] Speaker 02:
They filed their 1094.5 writ as part of their federal complaint.

[00:16:45] Speaker 02:
It was remanded

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right?

[00:16:53] Speaker 02:
It was state?

[00:16:55] Speaker 02:
Yes, the court abstained and they stayed all the federal matters and they and they remanded just the writ and on the basis under the logic of Pullman abstention because some of the issues may be narrowed some of the federal claims may be obviated and that's exactly what happened.

[00:17:10] Speaker 01:
So what I'm hearing today in response to the question the district court asked I think repeatedly

[00:17:14] Speaker 01:
really focusing on preclusion is the district court asked repeatedly what prevented Sullivan from going forward and litigating.

[00:17:24] Speaker 01:
What I'm hearing today is that there was some evidence they couldn't get in, I think, and so they think that their ability to litigate their claim was unfairly narrowed.

[00:17:34] Speaker 01:
Would you like to respond to that argument?

[00:17:49] Speaker 02:
governments in regards to preclusion.

[00:17:51] Speaker 02:
Their argument is to, it's sort of an extra element to issue preclusion, did you have a full and fair opportunity, which is the thrust of their argument, and they had the opportunity to do all of this.

[00:18:01] Speaker 02:
All of the documents they obtained from the Public Records Act request, they had in their possession

[00:18:32] Speaker 02:
rejected their accepted some of their evidence and rejected the rest of it.

[00:18:37] Speaker 02:
They had the opportunity to present that to the judge, and I've put into the supplemental excerpts of records.

[00:18:42] Speaker 02:
I think it's volume three.

[00:18:44] Speaker 02:
The fact that the trial court judge who rolled in their favor initially on an unacceptable probability of bias, which the state Court of Appeal overturned, said that I'm I have considered, she said repeatedly in her judgments.

[00:18:56] Speaker 02:
I considered in other words, you had the opportunity to argue.

[00:18:59] Speaker 02:
You did not explain

[00:19:13] Speaker 02:
shortcomings and arguing.

[00:19:15] Speaker 02:
They had a, I think they call it 700 pages of evidence, 676 documents.

[00:19:20] Speaker 02:
I think they're referring to separate emails.

[00:19:23] Speaker 02:
And they didn't bother to analyze each one of them.

[00:19:25] Speaker 02:
They took a shortcut.

[00:19:26] Speaker 02:
They said, here, we're going to analyze five or six of them or nine, whatever

[00:19:31] Speaker 02:
what this concludes to re-index.

[00:19:33] Speaker 02:
So the concept, it's cited in the Kemeny case.

[00:19:38] Speaker 02:
I think one of the federal cases, Dodd, also talks about the fact that what a full and fair opportunity means is when you're in front of the tribunal, you're in front of whatever judicial officer, you have to make all the legal arguments and factual arguments that are at your disposal.

[00:20:02] Speaker 02:
rather I argued it differently, they had the full opportunity to do that.

[00:20:07] Speaker 02:
And they just did not avail themselves of it.

[00:20:09] Speaker 02:
Council's referring to Lorenzen and false reports.

[00:20:14] Speaker 02:
We went over this at great length.

[00:20:16] Speaker 02:
It started with a motion for judgment on the pleadings on the issue of issue preclusion.

[00:20:21] Speaker 02:
And then Judge Snyder gave them leave to amend, so there was a second amended complaint, a third amended complaint.

[00:20:27] Speaker 02:
And council brings up new arguments about the trees weren't protected.

[00:20:31] Speaker 02:
They were, the removal was necessary for the reasonable development of the property.

[00:20:37] Speaker 02:
Again, these are all new arguments based on facts in their possession.

[00:20:41] Speaker 02:
And the idea that the trees weren't protected, that was conceded by the prior council in this matter.

[00:20:47] Speaker 02:
So all of those issues about where they're saying we weren't, things were narrowed unfairly.

[00:20:51] Speaker 02:
They're saying we didn't have an opportunity in case losses and the facts here say otherwise.

[00:20:57] Speaker 01:
I think you answered my question.

[00:20:59] Speaker 02:
Okay, thank you.

[00:21:00] Speaker 02:
And I'll just reserve the rest of my time for any further questions.

[00:21:03] Speaker 02:
There's no reservation for appeal either.

[00:21:06] Speaker 00:
If you have anything else to say.

[00:21:07] Speaker 02:
I'm not here that often, so I'm sorry I used the wrong vernacular, but I don't have anything further to present if you have any further questions.

[00:21:28] Speaker 03:
client conceded that the trees were protected.

[00:21:31] Speaker 03:
They cite to the arborist declaration in their brief to this panel, this is what the arborist said the trees were protected.

[00:21:41] Speaker 03:
It's in your file.

[00:21:43] Speaker 03:
The arborist said tree five doesn't mention it being protected.

[00:21:48] Speaker 03:
It was a misstatement to the panel this morning.

[00:21:54] Speaker 03:
That's what the arborist said.

[00:21:56] Speaker 03:
Tree 30 doesn't say it was protected.

[00:21:59] Speaker 03:
The possibility that two of the trees shouldn't have been recognized as protection first come up in court.

[00:22:08] Speaker 03:
Our court.

[00:22:10] Speaker 03:
Because I looked before and I don't see any reference of that being said to the district court or any reference that being said to the California court.

[00:22:17] Speaker 03:
Definitely said to the district court.

[00:22:18] Speaker 03:
I attached pictures to my opposition to the motion to dismiss she.

[00:22:34] Speaker 03:
up in the state court.

[00:22:36] Speaker 03:
I think that's one of the issues that the state court judge wouldn't entertain.

[00:22:40] Speaker 03:
That the trees were not protected.

[00:22:46] Speaker 01:
They were... Isn't there... I didn't see it come up in the state court.

[00:22:50] Speaker 01:
If you've got a record set, that would be helpful, but my understanding that there was not a contest that at least one of the

[00:23:04] Speaker 03:
came out very- The city had argued they were protected trees that were wrongly taken down.

[00:23:10] Speaker 01:
His response to date does track my notes.

[00:23:13] Speaker 01:
I think there was a concession by prior council in Fort Sullivan that the trees were taken out, taken up by accident.

[00:23:22] Speaker 01:
They had a permit to take out a bunch of trees.

[00:23:23] Speaker 01:
They took out three additional trees accidentally.

[00:23:27] Speaker 03:
That was his first- Yes.

[00:23:34] Speaker 03:
fraud that was being perpetrated on it by the city attorney.

[00:23:37] Speaker 03:
In fact, let me backtrack to the minute.

[00:23:39] Speaker 01:
So, but these were trees that were, these were not moving objects.

[00:23:42] Speaker 01:
How was this not within your client's ability to investigate these facts and to bring this argument before the state court?

[00:23:52] Speaker 03:
The answer to go on honestly.

[00:24:05] Speaker 01:
phrase because we're just here about issue of conclusion.

[00:24:09] Speaker 03:
I think my clients were denied the constitutionally fair hearing based on Clark and Knutson and that therefore that is now a proper claim under

[00:24:32] Speaker 03:
Arborist says tree five is at the front of the property.

[00:24:36] Speaker 03:
That's my argument that it interferes with the development of the property and therefore it can't be protected.

[00:24:42] Speaker 03:
I made the argument that was validated by what he said.

[00:24:45] Speaker 03:
Thank you for your time.

[00:24:47] Speaker 00:
For the argument in the case of Solve Inequity Partners LLC versus City of Los Angeles is submitted and will next