2:12-cv-02484 #61
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NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
KAMALA D.HARRIS,State Bar No.146672Attorney General of CaliforniaTAMARPACHTER,State Bar No. 146083Supervising Deputy Attorney GeneralALEXANDRA ROBERT GORDON,State Bar No.207650DANIEL POWELL,State Bar No.230304Deputy Attorneys General
455 Golden Gate Avenue, Suite 11000San Francisco, CA 94102-7004Telephone: (415) 703-5509Fax: (415) 703-5480E-mail: Alexandra.RobertGordon@doj.ca.gov
Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION
WELCH ET AL.,
Plaintiffs,
v.
BROWN ET AL.,
Defendants.
2:12-cv-02484
DEFENDANTS NOTICE OF MOTIONAND MOTION TO STAYPROCEEDINGS PENDING APPEAL
Date: February 11, 2013Time: 2:00 p.m.Dept: 5
Judge: The Honorable William B.Shubb
Action Filed: October 1, 2012
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NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE
THAT on February 11, 2013 at 2:00 p.m., or as soon thereafter as this matter may be heard in
Courtroom 5 of the United States District Court, located at 501 I Street, Sacramento, California,
Defendants Governor Edmund G. Brown Jr., in his official capacity, Anna M. Caballero, in her
official capacity as Secretary of the California State and Consumer Services Agency; Denise
Brown, in her official capacity as Director of Consumer Affairs; Christine Wietlisbach, Patricia
Dawson, Samara Ashley, Harry Douglas, Julia Johnson, Sarita Kohli, Renee Lonner, Karen Pines
and Christina Wong, in their official capacities as members of the California Board of Behavioral
Sciences; and Sharon Levine, Michael Bishop, Silvia Diego, Dev Gnanadev, Reginald Low,
Denise Pines, Janet Salomonson, Gerrie Schipske, David Serrano Sewell, and Barbara
Yaroslavsky, in their official capacities as members of the California Medical Board, will and
hereby do move to stay the proceedings in this action pending the resolution of the appeal filed on
January 2, 2013 in the United States Court of Appeals for the Ninth Circuit of this Courts
December 3, 2012 Order granting the motion for preliminary injunction as to the named plaintiffs
in this action.
This motion is made pursuant to 28 U.S.C. 1292(b), as well as to the Courts inherent
discretion to control the disposition of the cases on its docket, on the grounds that a stay of this
action would promote efficiency and prevent unnecessary expense and the waste of judicial and
party resources. This motion is based on the Notice of Motion and Motion, the accompanying
Memorandum of Points and Authorities in support thereof, the pleadings and papers on file in this
action, the arguments of counsel, and any matters upon which the Court may or must take judicial
notice.
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NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
Dated: January 2, 2013 Respectfully submitted,
KAMALA D.HARRISAttorney General of CaliforniaTAMARPACHTERSupervising Deputy Attorney General
/s/ Alexandra Robert GordonALEXANDRA ROBERT GORDONDeputy Attorney GeneralAttorneys for Defendants
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CERTIFICATE OF SERVICE
Case Name: Welch, Donald, et al. v. Brown, et al. No. 2:12-cv-02484
I hereby certify that on January 2, 2013, I electronically filed the following documents with theClerk of the Court by using the CM/ECF system:
DEFENDANTS NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS
PENDING APPEAL
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS
NOTICE OF MOTION AND MOTION TO STAY PROCEEDINGS PENDING APPEAL
[PROPOSED] ORDER GRANTING MOTION TO STAY PROCEEDINGS PENDING
APPEAL
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on January 2, 2013, at San Francisco,California.
N. Newlin /s/ N. Newlin
Declarant Signature
20661182.doc
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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
KAMALA D.HARRIS,State Bar No.146672Attorney General of CaliforniaTAMARPACHTER,State Bar No. 146083Supervising Deputy Attorney GeneralALEXANDRA ROBERT GORDON,State Bar No.207650DANIEL POWELL,State Bar No.230304Deputy Attorneys General
455 Golden Gate Avenue, Suite 11000San Francisco, CA 94102-7004Telephone: (415) 703-5509Fax: (415) 703-5480E-mail: Alexandra.RobertGordon@doj.ca.gov
Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION
WELCH ET AL.,
Plaintiffs,
v.
BROWN ET AL.,
Defendants.
2:12-cv-02484
MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEFENDANTS NOTICE OF MOTIONAND MOTION TO STAYPROCEEDINGS PENDING APPEAL
Date: February 11, 2013Time: 2:00 p.m/Dept: 5Judge: The Honorable William B.
ShubbAction Filed: October 1, 2012
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TABLE OF CONTENTS
Page
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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 1
ARGUMENT .................................................................................................................................. 2
I. This Court Should Grant a Stay of All Proceedings Pending Appeal. ................... 2
A. Defendants Will Suffer Considerable Hardship and Inequity If ThisAction Is Not Stayed. .................................................................................. 3
B. A Stay of This Action Will Not Prejudice Plaintiffs .................................. 4
C. A Stay of the Action Will Serve the Interests of Judicial Economyand Efficiency. ............................................................................................ 4
CONCLUSION ............................................................................................................................... 5
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TABLE OF AUTHORITIES
Page
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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
CASES
California Assoc. for Health Services at Home v. SebeliusNo. CV 11-10618, 2012 WL 893782 (C.D. Cal. Mar. 13, 2012) ............................................. 4
Chrysler-Jeep, Inc. v. Witherspoon
No. CV F 04-6663, 2007 WL 135688 (E.D. Cal. Jan. 16, 2007) .............................................. 5
Dependable Highway Exp., Inc. v. Navigators Ins. Co.498 F.3d 1059 (9th Cir. 2007) ................................................................................................... 4
Greene v. PlilerNo. CIVS020684, 2006 WL 572910 (E.D. Cal. Mar. 8, 2006) ................................................ 5
In re Lorazepam & Clorazepate Antitrust Litig.208 F.R.D. 1 (D.D.C. 2002) ...................................................................................................... 3
Kotrous v. Goss-Jewett Co. of Northern California, Inc.
No. Civ. S021520, 2005 WL 2452606 (E.D.Cal. Oct. 4, 2005) ........................................... 3, 5
Landis v. North American Co.
299 U. S. 248 (1936) ................................................................................................................. 5
Leyva v. Certified Grocers of California, Ltd.
593 F.2d 857 (9th Cir. 1979) ..................................................................................................... 2
Minor v. FedExNo. C 09-1375, 2009 WL 1955816 (N.D.Cal. Jul.6, 2009) ...................................................... 4
Pickup et al. v. Brown et al.No. 12-02497 ............................................................................................................................ 2
Rivers v. Walt Disney Co.
980 F. Supp. 1358 (C.D. Cal. 1997) ..................................................................................... 2, 3
San Diego Padres Baseball Pship v. United States
No. 99-CV-0828, 2001 WL 710601 (S.D. Cal. May 10, 2001) ................................................ 4
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TABLE OF AUTHORITIES
(continued)
Page
iii
MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
STATUTES
California Business and Professions Code
865 .......................................................................................................................................... 1
865.1 ....................................................................................................................................... 1 865.2 ................................................................................................................................... 1, 2
United States Code, Title 28
1292 ........................................................................................................................................ 2
CONSTITUTIONAL PROVISIONS
United States ConstitutionFirst Amendment ................................................................................................................... 1, 2
COURT RULES
Ninth Circuit Rules 3-3 ................................................................................................................... 4
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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
INTRODUCTION
Defendants respectfully move to stay the proceedings in this action pending resolution of
the appeals currently filed in the United States Court of Appeals for the Ninth Circuit regarding
the constitutionality of Senate Bill (SB) 1172. As this Court is aware, there are two conflicting
Orders in this District on whether SB 1172 violates the right to freedom of speech under the First
Amendment, and each Order has been appealed. The Ninth Circuits ruling on this purely legal
issue will profoundly affect the scope of, and/or possibly resolve, this case. Accordingly, staying
proceedings pending appeal will prevent the Court and the parties from wasting time and
resources addressing issues and matters that may be rendered unnecessary by the determination in
the Court of Appeals. Because this action is at an early stage, there is an accelerated briefing
schedule in the Ninth Circuit, and the Ninth Circuit has enjoined SB 1172 pending appeal, there is
no prejudice to plaintiffs from the grant of a stay. By contrast, forcing Defendants to litigate,
simultaneously and perhaps needlessly, the same legal issues before this Court and the Court of
Appeals would cause substantial hardship and inequity to Defendants. Thus, law, equity, and the
interests of economy and efficiency all dictate the grant of a stay pending appeal.
BACKGROUND
SB 1172 was signed by the Governor on September 29, 2012.1 See Cal. Stats. 2012, ch.
835, p. 91. SB 1172 prohibits any mental health provider from engaging in sexual orientation
change efforts (SOCE) with patients under 18 years of age. Id. 2 (to be codified at Cal. Bus. &
Prof. Code 865.1, 865(a)). Further, [a]ny sexual orientation change efforts attempted on a
patient under 18 years of age by a mental health provider shall be considered unprofessional
conduct and shall subject a mental health provider to discipline by the licensing entity for that
mental health provider. Id. (to be codified at Cal. Bus. & Prof. Code 865.2).
On October 1, 2012, Plaintiffs filed this action alleging violations of the right to privacy,
see Complaint (Count I) and the rights to free speech, religion, association, and due process under
1Because the Court is familiar with the history of this action, only those facts relevant to
the instant motion are set forth here.
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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
the First, Fifth, and Fourteenth Amendments to the United States Constitution,seeid. (Counts II-
VIII). On December 3, 2012, this Court granted Plaintiffs motion for a preliminary injunction as
to the three named Plaintiffs in this action. In so doing, this Court held, among other things, that
Plaintiffs had established a likelihood of success on the merits of their claims that SB 1172
violates their First Amendment rights to freedom of speech. Defendants filed a notice of appeal
of this Courts Order on January 2, 2013.2
On October 4, 2012, another action challenging the constitutionality of SB 1172 and
naming some of the same defendants was filed in this Court and assigned to the Honorable
Kimberly M. Mueller. SeePickup et al. v. Brown et al., No. 12-02497. ThePickup plaintiffs also
allege that SB 1172 violates the rights to privacy, free speech, and free exercise of religion. By
Order dated December 4, 2012, Judge Mueller deniedPickup plaintiffs motion for a preliminary
injunction and held that SB 1172 did not violate the First Amendment or parental rights. Pickup
plaintiffs appealed Judge Muellers order on December 4, 2013. On December 21, 2012, the
Ninth Circuit grantedPickup plaintiffs emergency motion to enjoin SB 1172 pending appeal.
ARGUMENT
I. THIS COURT SHOULD GRANT A STAY OF ALL PROCEEDINGS PENDING APPEAL.Pursuant to 28 U.S.C. section 1292(b), the district court is authorized to issue a stay of
proceedings pending an interlocutory appeal. In addition, district courts possess authority to stay
their proceedings that is incidental to the power inherent in every court to control the disposition
of the causes on its docket with economy of time and effort for itself, for counsel, and for
litigants. Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997) (citingLandis v.
North American Co., 299 U. S. 248, 254 (1936));see also Leyva v. Certified Grocers of
California, Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979) (A trial court may, with propriety, find it
is efficient for its own docket and the fairest course for the parties to enter a stay of an action
before it, pending resolution of independent proceedings which bear upon the case. This rule
applies whether the separate proceedings are judicial, administrative, or arbitral in character, and
2There currently is a Status Conference in this Court set for January 22, 2013, with a Joint
Status Conference Report due on January 15, 2013.
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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
does not require that the issues in such proceedings are necessarily controlling of the action
before the court).
A stay is warranted where it prevents prejudice to one or both parties and serves the
interests of judicial economy and efficiency. See, e.g.,Rivers, 980 F.Supp. at 1360 (citing
Wright, Miller & Cooper,Federal Practice and Procedure 3866 (1986)). When considering a
motion to stay, district courts consider three factors: (1) whether the moving party will suffer
hardship or inequity if a stay is not granted; (2) whether the non-moving party will be prejudiced
if a stay is granted; and (3) whether judicial resources will be saved by granting a stay. See, e.g.,
id. As set forth below, all three of these factors weigh in favor of staying this action.
A. Defendants Will Suffer Considerable Hardship and Inequity If This ActionIs Not Stayed.
As noted above, the issue of the constitutionality of SB 1172 currently is before the Ninth
Circuit on appeal. If this action is not stayed, Defendants will be forced to litigate the same issues
simultaneously before the district and the appellate court, and without the guidance of the Court
of Appeals. Among other things, Defendants will have to respond to potentially expensive and
time-consuming discovery and motion practice that ultimately may be unnecessary.3
Having to
duplicate and/or waste time and resources would impose an inequitable and unfair burden on
Defendants that warrants granting a temporary stay pending appeal. See, e.g.,In re Lorazepam &
Clorazepate Antitrust Litig., 208 F.R.D. 1, 6 (D.D.C. 2002) (granting stay and noting that
because two significant issues are currently pending before the Court of Appeals, one of which
could dispose of this litigation while the other could substantially reshape it, proceeding
headlong with discovery and other matters before this Court has the very real potential of
unnecessarily wasting significant resources of all parties);Kotrous v. Goss-Jewett Co. of
Northern California, Inc., No. Civ. S021520, 2005 WL 2452606, *4-5 (E.D.Cal. Oct. 4, 2005)
(Because the issue before the Ninth Circuit may be dispositive of plaintiffs federal claims, a
3To be clear, because this action involves a facial challenge to SB 1172, very little
discovery is appropriate. Plaintiffs, however, have indicated that they intend to propoundapparently more than minimal discovery with a cut-off date of July 1, 2013.
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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
stay of the proceedings at this point will promote economy of time and effort for both the parties
and the court).
B. A Stay of This Action Will Not Prejudice PlaintiffsGiven that this action is at a very early stage and that the Ninth Circuit has enjoined
enforcement of SB 1172 pending appeal, Plaintiffs will suffer no prejudice if a stay is issued. In
fact, a stay will benefit Plaintiffs, in the same way that it will benefit Defendants, as it will enable
them to avoid expending resources on discovery and matters that may become moot. See Minor
v. FedEx, No. C 09-1375, 2009 WL 1955816, at *1 (N.D.Cal. Jul.6, 2009) (granting stay and
determining that [t]o the extent that both [p]laintiffs and [d]efendants will be able to tailor
discovery and avoid duplicative or unnecessary tasks, this causes a benefit, rather than damage, to
accrue to both parties.). Because there is an expedited briefing schedule in the Court of Appeals,
there is no threat of significant delay in resuming proceedings in this Court. See California
Assoc. for Health Services at Home v. Sebelius, No. CV 11-10618, 2012 WL 893782, at *3 (C.D.
Cal. Mar. 13, 2012); Ninth Cir. R. 3-3. Accordingly, there is no meaningful possibility that the
proposed stay would work damage to Plaintiffs. Dependable Highway Exp., Inc. v. Navigators
Ins. Co.,498 F.3d 1059, 1066 (9th Cir. 2007).
C. A Stay of the Action Will Serve the Interests of Judicial Economy andEfficiency.A stay would promote economy of time and effort for the Court as well, as it would
relieve the Court from expending valuable time and resources on decisions that it may have to
reconsider in light of the Ninth Circuits ruling, or that the ruling may render moot. By granting a
stay, this Court can avoid unnecessarily addressing issues or questions of law that will be
impacted, if not resolved, by the Court of Appeals opinion regarding the constitutionality of SB
1172. Indeed, district courts regularly stay cases on the basis that resolution of the appellate
proceedings will simplify issues or questions of law in the cases before them. See, e.g.,
California Assoc. for Health Services at Home, No. 2012 WL 893782, at *2-3 (granting stay
where Ninth Circuit decision are likely to narrow issues in case); San Diego Padres Baseball
Pship v. United States, No. 99-CV-0828, 2001 WL 710601, at *1 (S.D. Cal. May 10, 2001)
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MEMORANDUM IN SUPPORT OF MOTION TO STAY PROCEEDINGS (2:12-cv-02484)
(upholding stay because decision in pending Ninth Circuit appeal would simplify issues before
the court); Chrysler-Jeep, Inc. v. Witherspoon, No. CV F 04-6663, 2007 WL 135688, at *10-15
(E.D. Cal. Jan. 16, 2007) (granting stay pending outcome of U.S. Supreme Court decision would
simplify issues and questions of law); Greene v. Pliler, No. CIVS020684, 2006 WL 572910, at *1
(E.D. Cal. Mar. 8, 2006) (granting stay because upcoming Ninth Circuit decision would simplify
issues and questions of law). Similarly, here, a stay would streamline issues, proof, and questions
of law and thus best serve the interests of judicial economy and efficiency. See Landis v. North
American Co., 299 U.S. at 254-255;Kotrous, 2005 WL 2452606, at *5.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court stay all
proceedings in this matter pending the resolution of the appeal in the United States Court of
Appeals for the Ninth Circuit of this Courts December 3, 2012 Order granting the motion for
preliminary injunction as to the named plaintiffs in this action.
Dated: January 2, 2013 Respectfully Submitted,
KAMALA D.HARRISAttorney General of California
TAMARPACHTERSupervising Deputy Attorney General
/s/ Alexandra Robert GordonALEXANDRA ROBERT GORDONDeputy Attorney GeneralAttorneys for Defendants
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[Proposed] Order (2:12-cv-02484)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
WELCH ET AL.,
Plaintiff,
v.
BROWN ET AL.,
Defendant.
Case No. 2:12-cv-02484
[PROPOSED] ORDER GRANTINGMOTION TO STAY PROCEEDINGSPENDING APPEAL
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[Proposed] Order (2:12-cv-02484)
The Defendants motion to stay the proceedings in this action pending the resolution of
the appeal in the United States Court of Appeals for the Ninth Circuit of this Courts December 3,
2012 Order granting the motion for preliminary injunction, came on for hearing in this Court on
February 11, 2013, at 2:00 p.m., in Courtroom 5, before the Honorable William B. Shubb, United
States District Court Judge. Kevin T. Snider and Matthew B. McReynolds appeared on behalf of
Plaintiffs. Deputy Attorney General Alexandra Robert Gordon appeared on behalf of Defendants
Having considered Defendants motion and Plaintiffs opposition, the other pleadings and
documents on file in this case, and the arguments of the parties, and good cause appearing, the
Court hereby GRANTS Defendants motion. All proceedings in this case are stayed pending
resolution of the appeal of the order granting a preliminary injunction.
IT IS SO ORDERED.
Dated: ___________________________ __________________________The Honorable William B. Shubb
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