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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: [email protected]

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

Case 2:12-cv-02484-WBS-KJN Document 61 Filed 01/02/13 Page 1 of 4

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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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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: [email protected]

Attorneys for Defendants



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

Case 2:12-cv-02484-WBS-KJN Document 61-1 Filed 01/02/13 Page 1 of 9

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TABLE OF CONTENTS

Page

i


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

ii


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


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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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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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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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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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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(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)



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


2:12-cv-02484 #61

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