Buffin et al v. City and County of San Francisco et al

Filing 119

ORDER by Judge Yvonne Gonzalez Rogers granting 110 Motion to Intervene. (fs, COURT STAFF) (Filed on 3/6/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RIANA BUFFIN, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 15-cv-04959-YGR
ORDER GRANTING MOTION TO INTERVENE

v.
Re: Dkt. No. 110
THE CITY AND COUNTY OF SAN FRANCISCO,
et al.,

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Defendants.

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The allegations of this action are well-known. Since plaintiffs filed their Third Amended

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Complaint (“3AC”), the Court has dismissed the following defendants: the State of California, the

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City and County of San Francisco, and the California Attorney General.1 Additionally, the last

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remaining defendant, Sheriff Vicki Hennessy, has announced she will not defend this action.

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In this context, the California Bail Agents Association (“CBAA”) filed a fourth motion to

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intervene. Having carefully considered the papers submitted and for the reasons discussed below,

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the Court DENIES CBAA’s motion to intervene as of right and GRANTS CBAA’s motion for

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permissive intervention subject to the conditions outlined in this Order.

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I. BACKGROUND
The 3AC fundamentally challenges the San Francisco Sheriff’s use of a bail schedule to
detain a person prior to being seen by a judicial officer. In California, state law imposes a duty on
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Plaintiff’s Complaint names Kamala Harris as California’s Attorney General. However,
Kamala Harris is now a Senator and was replaced as Attorney General by Xavier Becerra. Thus,
any future references in this action to the Attorney General shall now apply to Mr. Becerra. See
FED. R. CIV. P. 25(d) (“[W]hen a public officer who is a party in an official capacity . . . ceases to
hold office while the action is pending[,] [t]he officer’s successor is automatically substituted as a
party.”)

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superior court judges to “prepare, adopt, and annually revise a uniform countywide schedule of

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bail” for all bail-eligible offenses except Vehicle Code infractions. Cal. Pen. Code. § 1269b(c). The

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County Sheriff then determines a particular arrestee’s bail amount by referencing the bail schedule.

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Cal. Pen. Code. § 1269b(a).
Plaintiffs allege section 1269b has the effect of requiring secured money bail and causes

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San Francisco to detain individuals solely because they cannot afford the cost of release. (See 3AC

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¶ 18.) They therefore allege that section 1269b is unconstitutional because it requires or permits

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“wealth-based detention without an inquiry into an individual’s ability to make a monetary

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payment.” (See id. at ¶¶ 21–26.)
Under the current procedural posture, the only remaining defendant has refused to defend

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United States District Court
Northern District of California

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the statute. CBAA—an “association of approximately 3,300 surety bail agents who facilitate the

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posting of surety bail bonds by arrestees in California”—moves to intervene as a defendant, and

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seeks to defend the constitutionality of section 1269b. (Fourth Motion to Intervene, “4MTI.”)

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CBAA filed its first motion to intervene on December 21, 2015. (Dkt. No. 41.) However,

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the Court found CBAA’s first motion premature. (Dkt. No. 55 at 3.) CBAA then filed its second

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motion to intervene, which the Court denied without prejudice for failing to comply with Federal

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Rule of Civil Procedure 24(c). (Dkt. No. 99 at 23.) Next, CBAA filed its third motion to intervene,

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but it was taken off calendar after the Attorney General indicated she would also seek to intervene.

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(Dkt. No. 106.) Ultimately, however, the Attorney General decided not to intervene. (Dkt. No.

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109.) Finally, on December 20, 2016, CBAA filed its fourth motion to intervene, which is now

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pending before the Court. (Dkt. No. 110.)

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II.

CBAA’S MOTION TO INTERVENE
CBAA moves to intervene as a defendant pursuant to Rule 24(a) as a matter of right or, in

the alternative, for permissive intervention under Rule 24(b).

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The Sheriff, the last remaining defendant, does not oppose CBAA’s motion to intervene.

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A. Intervention as of Right – Rule 24(a)

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Intervention under Rule 24(a)(2) is appropriate upon satisfaction of a four-factor test: (1) the

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applicant must assert a “significantly protectable” interest relating to the property or transaction that

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is the subject of the action; (2) the applicant’s interest must be represented inadequately by the

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parties to the action; (3) the applicant must be situated such that disposition of the action may, as a

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practical matter, impair or impede its ability to protect that interest; and (4) the applicant’s motion

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must be timely. Fed. R. Civ. P. 24(a); Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998)

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(citing Cabazon Band of Mission Indians v. Wilson, 124 F.3d 1050, 1061 (9th Cir. 1997)). Failure

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to satisfy any one of the requirements is fatal to the application, and a court need not reach the

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remaining elements if one of the elements is not satisfied. Perry v. Proposition 8 Official

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Proponents, 587 F.3d 947, 950 (9th Cir. 2009).

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Whether intervention as of right is warranted here turns primarily on the first factor. A
movant has a “significantly protectable” interest if that asserted interest is protected under some

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United States District Court
Northern District of California

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law and is related to the plaintiff’s claims. California ex rel. Lockyer v. United States, 450 F.3d

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436, 441 (9th Cir. 2006) (citing Donnelly, 159 F.3d at 409). When evaluating a proposed

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intervenor’s alleged interest, the Ninth Circuit has made clear that Rule 24(a)(2) does not require a

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specific legal or equitable interest. Fresno Cty. v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980).

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Rather, “a party has a sufficient interest for intervention purposes if it will suffer a practical

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impairment of its interests as a result of the pending litigation.” Lockyer, 450 F.3d at 441. For

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example, the Ninth Circuit has held that a party may seek to intervene as of right when it is the

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intended beneficiary of a challenged law. See, e.g., Lockyer, 450 F.3d at 442 (finding a significantly

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protectable interest where the proposed intervenors were the intended beneficiaries of the

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challenged legislation); Arakaki v. Cayetano, 324 F.3d 1078, 1084 (9th Cir. 2003) (concluding that

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native Hawaiians had a significantly protectable interest in their exclusive, government-funded

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benefits, which were the subject of the plaintiffs’ challenge). Further, a non-speculative, economic

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interest may be sufficient to support intervention if the interest is concrete and related to the

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action’s underlying subject matter. United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir.

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2004). However, an economic stake in the outcome of the litigation—even if significant—does not,

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by itself, qualify as a significantly protectable interest. Greene v. United States, 996 F.2d 973, 976

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(9th Cir. 1993). Thus, in Alisal, the Ninth Circuit declined to find a significant protectable interest

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where a judgment creditor sought to intervene in an environmental enforcement action in which he

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had no interest except for the prospect that an award of penalties in the remedial phase might impair

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his ability to collect the debt. 370 F.3d at 920–21. In short, the “significantly protectable” interest

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test is not a bright-line rule and requires a case-by-case, fact-based analysis.

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Here, CBAA asserts a “significantly protectable” interest in the survival of (1) its members’

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already-existing surety bail bond contracts and (2) its industry as a whole going forward. First, with

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respect to its current bail bond contracts, the Court disagrees that CBAA will “suffer a practical

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impairment of [this particular] interest as a result of the pending litigation.” Lockyer, 450 F.3d at

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441. CBAA claims that plaintiffs’ requested relief—a declaration that section 1269b is

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unconstitutional—would necessarily invalidate all outstanding surety bail bond contracts. Not so.
Section 1269b merely concerns a discrete portion of the bail system used in California. Though

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United States District Court
Northern District of California

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section 1269b(a) authorizes government officials to accept surety bonds in exchange for an

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arrestee’s pre-arraignment release, plaintiffs do not challenge this provision. Nor do plaintiffs

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mount an independent challenge to the current contracts themselves. Thus, even if the Court did

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grant plaintiffs’ requested relief, it is the bail-setting method used by San Francisco County that

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would be deemed unconstitutional—not the ability of surety bail agents to enforce already-existing

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bail bond contracts or enter into new ones.

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Second, CBAA’s argument that it has a “significantly protectable” interest in the continued

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viability of its industry because the bail bond industry was established by the California

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Constitution and/or the Eighth Amendment fails to persuade. At most, the cited provisions approve

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of the use of surety bail bonds to secure an arrestee’s pre-arraignment release. They do not

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guarantee the industry’s existence. Moreover, neither CBAA nor its members are the intended

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beneficiaries of section 1269b. Thus, CBAA’s interest in defending section 1269b is

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distinguishable from the intervenors in either Lockyer or Arakaki. CBAA’s interest in continuing to

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profit from the provision of bail bonds is more akin to the interest of the judgment creditor in

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Alisal, which was rejected by the Ninth Circuit as being “too remote from the core issues involved

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in the litigation.” In re Estate of Ferdinand E. Marcos Human Rights Litig., 536 F.3d 980, 986 (9th

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Cir. 2008) (discussing Alisal, 370 F.3d 915). Finally, CBAA’s assertion that its industry will be

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necessarily destroyed should plaintiffs’ claims succeed is similarly unavailing. Plaintiffs’ challenge

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is lim
mited to the method San Francisco County uses to set bail fo pre-arraig
n
C
for
gnment arres
stees, a

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period of time th is typical only 48 hours. CBAA overstates the limited scope of the action.
hat
lly
h
A
e

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For the foregoing rea
f
asons, the Court finds th CBAA do not have a significan
hat
oes
e
ntly
prot
tectable inter in this li
rest
itigation and DENIES the motion to in
d
e
ntervene as of right.2
B. Perm
missive Intervention – Rule 24(b)
R

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The Cou next addresses permis
urt
ssive interve
ention under Rule 24(b). With respec to
ct

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perm
missive inter
rvention, the applicant fo interventio must sho that (1) in
e
or
on
ow
ndependent g
grounds for

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juris
sdiction exis (2) the mo
st;
otion is timely; and (3) th applicant claim or d
he
t’s
defense shar a
res

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com
mmon questio of law or fact with the main actio Fed. R. C P. 24(b); League of United Latin
on
e
on.
Civ.
;
n

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Am. Citizens v. Wilson, 131 F.3d 1297, 1308 (9th Cir. 1997). Ev where al prerequisit are met,
ven
ll
tes

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United States District Court
Northern District of California

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strict court has considera discretion in ruling on a motion for permiss interven
h
able
n
sive
ntion. In re
a dis

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Benny, 791 F.2d 712, 721–2 (9th Cir. 1986). “In ex
d
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xercising its discretion, t court mu consider
the
ust

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whe
ether the inte
ervention wil unduly del or prejud the adju
ll
lay
dice
udication of t original parties’
the

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righ
hts.” Fed. R. Civ. P. 24(b
b)(3).

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1.
1

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Indep
pendent Juris
sdictional G
Grounds

Permissi intervent
ive
tion first requires indepe
endent groun for jurisd
nds
diction. Free
edom from

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Reli
igion Found. Inc. v. Gei
.,
ithner, 644 F.3d 836, 843 (9th Cir. 2
F
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2011) (citing Beckman In
g
ndus., Inc. v.

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Int'l Ins. Co., 96 F.2d 470, 473 (9th Cir 1992)). Pe
l
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r.
ermissive int
tervention’s jurisdictional

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requ
uirement is primarily con
p
ncerned with avoiding th inappropr
h
he
riate expansi of the dis
ion
strict courts’
’

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juris
sdiction. Id. For instance in a divers case, a p
e,
sity
proposed inte
ervenor may not use perm
y
missive

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inter
rvention “to gain a feder forum for state-law c
ral
r
claims over w
which the dis
strict court w
would not,

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othe
erwise, have jurisdiction.” Id. In fede question cases, how
eral
n
wever, “the di
istrict court’
’s

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juris
sdiction is gr
rounded in th federal qu
he
uestion(s) ra
aised by the p
plaintiff,” an the requir
nd
rement does

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not apply when the proposed intervenor is not raisin new claim Id. at 844
d
r
ng
ms.
4.

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Here, the Court has federal question jurisdic
e
f
ction over pla
aintiffs’ con
nstitutional ch
hallenges to
tion 1269b. In the parties Joint State
I
s’
ement Regar
rding Propos Intervent
sed
tion and Cas
se
sect

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Becaus the Court finds that CB
se
BAA does n have a sig
not
gnificantly p
protectable interest, it
does not address the remain
s
s
ning factors for interventi as of rig
f
ion
ght.
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Man
nagement (D No. 117) CBAA agr
Dkt.
),
reed not to a
assert any co
ounterclaims According CBAA
s.
gly,

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does not seek, and will not be permitted to inject an new issue into the lit
s
a
b
d,
ny
es
tigation over which the
r

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Cou would not otherwise have jurisdic
urt
t
h
ction.

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Therefor the Court finds that th jurisdictio
re,
t
he
onal requirem is satis
ment
sfied.
2.
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Timel
liness

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CBAA’s motion mu also be tim
s
ust
mely. Fed. R Civ. P. 24( When as
R.
(b).
ssessing tim
meliness, the

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Nint Circuit co
th
onsiders thre factors: (1) the stage o the procee
ee
of
edings; (2) an prejudice to existing
ny
e

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part
ties; and (3) the length of and reason for, any de
t
f,
n
elay. League of United L
e
Latin Am. Cit
tizens v.

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Wils 131 F.3d 1297, 1308 (9th Cir. 1997) (citing Orange Cty v. Air Cali
son,
g
y.
ifornia, 799 F.2d 535,

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United States District Court
Northern District of California

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537 (9th Cir. 19
986)).
Here, tim
meliness is not an issue. CBAA filed its initial m
n
d
motion to inte
ervene less t
than two
nths
aintiffs filed their compla
aint. (Dkt. N 41.) CBA
No.
AA’s motion is timely.
n
mon after pla
3.
3

Comm Questio of Law or Fact
mon
on
r

The fina factor “req
al
quires only that [the prop
t
posed interv
venor’s] claim or defense and the
m
e

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main action hav a question of law or fa in commo Kootenai Tribe of I
n
ve
n
act
on.”
Idaho v. Ven
neman, 313

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F.3d 1094, 1108 (9th Cir. 20
d
8
002), abroga on othe r grounds by Wilderness Soc. v. U.S Forest
ated
y
s
S.

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Serv 630 F.3d 1173 (9th Cir. 2011). Un
v.,
nlike interve
ention as of r
right, a prop
posed interve
enor need

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not specify any particular pe
ersonal or pe
ecuniary inte
erest in the s
subject of the litigation. I
e
Id.

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e
tal
r
aintiffs is wh
hether sectio 1269b vio
on
olates the
Here, the fundament question raised by pla

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urteenth Ame
endment. At least two of CBAA’s pr
f
roposed affir
rmative defe
enses, as arti
iculated in its
Fou

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Prop
posed Answer to Plaintif 3AC, req
ffs’
quire resolut
tion of this s
same legal qu
uestion. Thu resolution
us,
n

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of CBAA’s prop
C
posed affirm
mative defens are interc
ses
connected w the funda
with
amental lega question
al

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pose by plainti
ed
iffs.

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Therefor CBAA ha asserted a defense tha shares a qu
re,
as
at
uestion of la with the m action.
aw
main
4.
4

Perm
missive Interv
vention—wit Condition
th
ns—is Warra
anted

In sum, the Court fin that CBA satisfies the three req
t
nds
AA
quirements f permissiv
for
ve

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inter
rvention. Ho
owever, the Court still maintains disc
C
m
cretion to gr or deny the motion t intervene.
rant
to

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constitutiona
Here given the absence of any defendan willing to defend the c
e,
a
nt
ality of secti 1269b,
ion

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the Court finds intervention appropriate. Without zealous advocates—on both sides—the Court

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risks deciding an important constitutional question without two sets of well-crafted legal arguments

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and a fully-vetted factual record. CBAA’s intervention alleviates these concerns. Moreover,

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allowing CBAA to intervene will result in minimal delay and cause no prejudice to plaintiffs.3

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Accordingly, the Court GRANTS CBAA’s motion to intervene. That said, the Court also

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finds that limits should be placed on CBAA’s participation in this action, consistent with the

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Supreme Court’s discussion in Stringfellow v. Concerned Neighbors in Action. 480 U.S. 370, 375–

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78 (1987). Thus, in accordance with the parties’ Joint Statement Regarding Proposed Intervention

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and Case Management (Dkt. No. 117), the Court limits CBAA’s intervention as follows:

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First, CBAA may not expand the scope of this action or raise new issues. Thus, CBAA may

United States District Court
Northern District of California

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not file any motion to dismiss or seek to assert any counterclaims. CBAA may only file its

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proposed answer, any opposition(s) to plaintiffs’ motion(s), a motion for summary judgment,

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and/or a trial brief. All filings must also be in accordance with this Court’s Standing Order.

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Second, all discovery must be shared. To the extent possible, factual presentation to the

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Court shall be based on stipulated facts. Plaintiffs shall first propose a list of facts upon which they

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intend to rely, and CBAA shall then propose additional facts for stipulation within ten days of

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receiving plaintiffs’ list. Only those facts that cannot be established through stipulation will be the

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subject of formal discovery. After plaintiffs’ initial round of discovery is complete, CBAA may

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propound its own discovery only to the extent necessary to fill any gaps left by plaintiffs, correct

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any inaccuracies, or fully vet the factual record. Such discovery may include depositions of parties,

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third-parties, and experts. All discovery requests should be crafted so as to minimize discovery

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costs, and must be relevant to the issues raised in plaintiffs’ claims and any corresponding defenses.

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CBAA shall not propound duplicate discovery. If any discovery requested by plaintiffs was not

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provided by defendant or a third party, however, CBAA may request the material in its own

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discovery requests. If necessary, CBAA may also file motions concerning its own discovery

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The Court also rejects plaintiffs’ request to relegate CBAA to amicus curiae status.
Amicus curiae status, under these unique circumstances, is inadequate and does not assure
sufficient adversarial participation necessary for resolution of the issues presented.
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requests after meeting-and-conferring, and in accordance with this Court’s Standing Order, but it

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may not file any motions with respect to plaintiffs’ discovery requests.
Third, CBAA may seek leave to file an opposition to plaintiffs’ motion for class

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certification within seven days of said filing. Plaintiffs will have seven days to respond to any such

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request.

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III.

CONCLUSION
For the reasons stated herein, the Court DENIES CBAA’s motion to intervene as of right and

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GRANTS CBAA’s motion for permissive intervention subject to the conditions outlined in this

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Order.
IT IS SO ORDERED.

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United States District Court
Northern District of California

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This Order terminates Docket Number 110.

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Date: March 6, 2017

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_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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