LOS ANGELES, CITY OF v. COUNTY OF KERN

Appellants’ Reply Brief on the Merits

Cal.November 13, 2013

SUPREME COURT FILED No. $210150 NOV 13 2013 (Court ofAppeal No. F063381) E (Tulare County Super. Ct. No. VCU242057) rank A. McGuire Clerk Deputy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CITY OF LOS ANGELES, ETAL., Plaintiffs and Respondents, Vv. COUNTY OF KERN and KERN COUNTY BOARD OF SUPERVISORS, Defendants andAppellants. APPELLANTS’ REPLY BRIEF ON THE MERITS ARNOLD & PORTER LLP COUNTY OF KERN STEVEN L. MAYER (No. 62030) THERESA A. GOLDNER(No. 107344) steve.mayer@aporter.com COUNTY COUNSEL 3 Embarcadero Center, 10th Floor San Francisco, California 94111 Telephone: 415.471.3100 Facsimile: 415.471.3400 HOGAN LAWAPC MICHAEL M. HOGAN(No. 95051) mhogan@hoganlawapc.com 225 Broadway, Suite 1900 San Diego, California 92101 Telephone: 619.687.0282 Facsimile: 619.234.6466 tgoldner@co.kern.ca.us MARKL. NATIONS (No. 101838) DEPUTY COUNTY COUNSEL mnations@co.kern.ca.us 1115 Truxtun Avenue,4th Floor Bakersfield, California 93301 Telephone: 661.868.3800 Facsimile: 661.868.3805 Attorneys for Defendants andAppellants County ofKern and Kern County Board ofSupervisors TABLE OF CONTENTS INTRODUCTION ARGUMENT I. RESPONDENTS’ PREEMPTION AND POLICE POWERS CAUSES OF ACTION ARE BARREDBY 28 U.S.C. §1367(d). A. The Word “Tolled” Is Susceptible To More B. C. Than OneInterpretation. 28 U.S.C. §1367(d) Is Susceptible To More Than OneInterpretation. Respondents’ Remaining Arguments That Section 1367(d) Has Only One Possible Meaning Are Meritless. The Extension Approach Best Accommodates The Competing Interests At Stake By Avoiding The Forfeiture Of State Law Claims Dismissed By A Federal Court While Giving Plaintiffs Ample Opportunity To Refile Such Claims After Dismissal. CONCLUSION Page 16 TABLE OF AUTHORITIES Cases Berke v. Buckley Broad. Corp., 821 A.2d 118 (N.J. Super. Ct. 2003) Bldg. Indus. Ass’n v. State Water Res. Control Bd., 124 Cal. App. 4th 866 (2004) Cabello v. Fernandez-Larios, 402 F.3d 1148 (11th Cir. 2005) Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1992) Chardon v. Fumero Soto, 462 U.S. 650 (1983) Coan v. State, 11 Cal. 3d 286 (1974) Collier v. City ofPasadena, 142 Cal. App. 3d 917 (1985) Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006) Graham v. Scissor-Tail, Inc., 28 Cal. 3d 807 (1981) Huang v. Ziko, 511 S.E.2d 305 (N.C.Ct.App. 1999) Jinks v. Richland Cnty., 538 U.S. 456 (2003) Kolani v. Gluska, 64 Cal. App. 4th 402 (1998) Lantzy v. Centrex Homes, 31 Cal. 4th 363 (2003) Lewis v. Superior Court, 175 Cal. App. 3d 366 (1985) Mangum v. Action Collection Serv. Inc., 575 F.3d 935,(9th Cir. 2008) (O’Scannlain, J. , specially concurring) Marcusv. Director, Office of Workers’ Comp. Programs, 548 F.2d 1044 (D.C.Cir. 1977) McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88 (2008) -ii- Page(s) 6,7 9-10 3, 7 15 14 9,11 14 15 15 TABLE OF AUTHORITIES Page(s) Norgart v. Upjohn, Co., 21 Cal. 4th 383 (1999) 14 Pearson Dental Supplies, Inc. v. Superior Court, 48 Cal. 4th 665 (2010) 4 People v. Leiva, 56 Cal. 4th 498 (2013) 1, 2, 3, 5, 6, 9, 14 People v. Memro, 11 Cal. 4th 786 (1995) 6 Phillips v. Heine, 984 F.2d 489 (D.C. Cir. 1993) 4 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) 1 Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) (en banc) 4 Turner v. Kight, 957 A.2d 984 (Md.Ct. App. 2008) 6 Venegas v. Cnty. ofLos Angeles, 32 Cal. 4th 820 (2004) 6 Zhang Gui Juan v. Commonwealth, No. 99-032, 2001 WL 34883536 (N.M.I. Nov. 19, 2001) 7 Statutes and Rules 28 U.S.C. § 1867(d) . passim FED.R. CIv. P. 11(b) 12 CAL. R. CT. 8.520(b)(3) 15 Other Authorities H. REP. 101-734 (1990), reprinted in 1990 U.S.C.C.A.N. 6860 11 16 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE §106.66[3][c] (3d ed. 2011) 13 S. REP. 101-416 (1990), reprinted in 1990 U.S.C.C.A.N. 6802 1,10 WEBSTER’S NEWWORLD LAW DICTIONARY 257 (2006) 2 “iii- INTRODUCTION Respondents’ AnswerBrief on the Merits (“RB”) boils down to a single premise: that “the term ‘toll,’ as it is used in its context within § 1367(d), is only susceptible to a single meaning.” RB 17. This premise is demonstrably false. It is contradicted by the fact that more than ten cases interpreting Section 1367(d) have reached diametrically opposite conclusions as to what the statute means. Indeed, even the cases that have upheld Respondents’ interpretation have recognized that the statute is ambiguous. That is not surprising, for “tolling” has different “tolling effects” in different contexts. Respondents’ interpretation of Section 1367(d) is flawed because it violates the rule that “[i]nterpretation of a word or phrase depends upon reading the whole statutory text, consider- ing the purpose and context of the statute.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006). In Dolan, for example, the Court held that the “ordinary meaning and usage”of the phrase “negli- gent transmission” did not control the meaning of the statute where “both context and precedent require[d] a narrower mean- ing.” Jd. Moreover, the language of a federal statute must be construed with reference to both “the specific context in which that languageis used, and the broadercontext of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Asa result, the Court must “ascertain the intent of the enacting leg- islative body so that we may adopt the construction that best effectuates the purpose of the law.” People v. Leiva, 56 Cal. 4th 498, 506 (2013) (citation and internal quotation marks omitted). Here is where Respondents’ interpretation of Section 1367(d) falls fatally short. While Respondents acknowledge the proposi- tion that “the meaning of individual words derives from their specific statutory context” (RB 12), they paylittle heed to the fact that Section 1367(d) is part of a statute enacted to promote “the just, speedy, and inexpensiveresolutionof civil disputes.” S. Rep. 101-416, at 1 (1990), reprinted in 1990 U.S.C.C.A.N. 6802, 6804. Appellants’ interpretation of Section 1367(d) advances this goal because it requires the prompt refiling of federally dismissed claims in state court while simultaneously giving plaintiffs enough time to accomplish the simple task of putting a new cap- tion on an existing complaint. In contrast, Respondents’ inter- pretation of the statute frustrates this goal because it would permit plaintiffs to delay refiling for months—or even years— after a case had been extensively litigated in federal court regardless of how long the dismissed claims had been pending in federal court and without any showing that such delays are nec- essary. Indeed, under Respondents’ interpretation of Section 1367(d), they could have sat on their hands and postponedrefil- ing this case until October 2013—i.e., more than the entire period of time it took this case to reach this Court. Congress could not have intended this statute to permit such an untoward and unwarranted result. ARGUMENT I. RESPONDENTS’ PREEMPTION AND POLICE POWERS CAUSES OF ACTION ARE BARREDBY28U.S.C. §1367(d). A. The Word “Tolled” Is Susceptible To More Than One Interpretation. Respondents devote much of their brief to proving that “the most common understandingof the term ‘toll’ in a legal contextis ‘to stop the runningof; to abate....” RB 11 (quoting Leiva, 56 Cal. 4th at 507) (some internal quotation marks omitted). But that does not mean that this is its only meaning. For example, one legal dictionary defines “toll” as “stop from running” (WEBSTER’S NEW WORLD LAW DICTIONARY257 (2006)), which can mean “stop from expiring.” Moreover, Leiva refused to interpret “tolled” as meaning “suspended” where to do so would haveled to “absurd consequences that the Legislature could not have intended.” 56 Cal. 4th at 508 (citation and internal quotation -2. marks omitted); accord, id. at 516 (Court’s interpretation of tolling statute “reinforced by consideration of the unreasonable consequences that would flow from a contrary interpretation”). Moreover, the ambiguity inherent in “tolling” is amplified by the fact that, as the Supreme Court recognized in Chardon v. Fumero Soto, 462 U.S. 650 (1983), the “tolling” of a statute of limitations can have several different “tolling effects.” Id. at 652 n.1; accord, id. at 661 (“American Pipe does not answer the ques- tion whether, in a § 1983 case in which thefiling of a class action has tolled the statute of limitations until class certification is denied, the tolling effect is suspension rather than renewal or extension of the period”). Respondents assert that Fumero Soto supports their position because “[t]he list of possible ‘tolling effects’ in Fumero Soto—suspension, renewal, and annul- ment .... excludes Kern’s preferred extension approach.” RB 23 (emphasis in original). Not so. The third “tolling effect” described in Fumero Soto is not “annulment’—whatever that means—butinstead “a fixed period . . . during which the plaintiff mayfile suit, without regard to the length of the original limita- tions period or the amountof time left when tolling began.” 462 U.S. at 652 n.1. That precisely describes Kern’s interpretation of Section 1367(d). Nor is it true that “no court has adopted that approach.” RB 23. As Respondents elsewhere acknowledge, four courts have done so. See RB 21 (disparaging but acknowledging the four decisions that have adopted the Extension Approach).! ‘Nor can Respondentsfind solace in the fact that Fumero Soto looked to state law to determinethe tolling rule applicable there. RB 24. In that case, the relevant federal statute expressly provided that, where federal law did not supply the means for enforcing liability under the federal civil rights statutes, “the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause....” 462 U.S. at 656 n.7 (citation and (continued ... ) The fact that tolling can have several tolling effects is also demonstrated by the casesaddressing equitable tolling. The fed- eral courts disagree regarding the effect of equitable tolling, a disagreement that could not exist if “tolling” had a single, fixed meaning. Compare Socop-Gonzalez v. INS, 272 F.3d 1176, 1193- 96 (9th Cir. 2001) (en banc) (tolling stops the clock), and Cabello v. Fernandez-Larios, 402 F.3d 1148, 1156 (11th Cir. 2005) (“the statutory clock is stopped whiletolling is in effect”), with Phillips v. Heine, 984 F.2d 489, 492 (D.C. Cir. 1993) (“[A]lthough courts often speak vaguely of the doctrine’s suspending the operation of the statute until the tolling circumstanceis corrected,tolling does not bring about an automatic extension of the statute of limita- tions by the length of the tolling period. It gives the plaintiff extra time only if he needs it.... The purposes of the doctrine are fully achieved if the court extends the timeforfiling by a rea- sonable period after the tolling circumstance is mended”) (citation (... continued) internal quotation marks omitted). In other words, the federal statute expressly provided that state law applied where federal law wassilent. That is not true here, where the relevant federal statute expressly provides a federal rule preventing the limitations period from expiring whena state law claim isfiled in federal court under that court’s supplemental jurisdiction. Indeed, the commandin Section 1367(d) that the federaltolling rule applies “unless state law providesfor a longertolling period” necessarily embodies a Congressional determination that federal law governsinterpretation of the statute. State law is therefore irrelevant to determining how that federal statute should be interpreted. If the rule were otherwise, Section 1367(d) would have a different meaning depending on the tolling rules of the particular jurisdiction in which the supplemental claim had been filed. Respondents offer no authority supporting such a bizarre result. Compare Marcusv. Director, Office of Workers’ Comp. Programs, 548 F.2d 1044, 1047 & n.4 (D.C. Cir. 1977) (deferring to state law definition of “husband”in federal statute because “there is no general federal common law of domestic relations”), For that reason, Respondents cannot rely on cases such as Pearson Dental Supplies, Inc. v. Superior Court, 48 Cal. 4th 665 (2010), which discuss the meaningof“toll” in the context of state law. omitted; emphasis in original); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452 (7th Cir. 1992) (“We do not think equitable tolling should bring about an automatic extension of the statute of limitations by the length of thetolling period or any other defi- nite term. It is, after all, an equitable doctrine. It gives plaintiff extra time if he needsit”) (citation omitted); see also Mangum v. Action Collection Serv. Inc., 575 F.3d 935, 947-48 (9th Cir. 2008) (O’Scannlain, J., specially concurring) (criticizing Socop- Gonzalez). This conflict would not exist if, as Respondents con- tend, “tolling” always means “suspended.”” B. 28 U.S.C. §1367(d) Ils Susceptible To More Than One Interpretation. Implicitly acknowledging that “tolling” is ambiguous, Respondents argue that any ambiguity in the meaningof “tolled” disappears in the context of Section 1367(d). RB 12-13 (“the appropriate inquiry is not what ‘tolled’ means ‘in different con- texts,’ but what it means here”). Accordingly, as noted above, their whole brief is based on the premise that “the term ‘toll,’ as it is used in its context within § 1367(d), is only susceptible to a single meaning.” RB 17. That argument fails in light of the long-standing split of authority regarding the meaning of Section 1367(d). As the Court recognized in People v. Leiva, construing a tolling statute that had been interpreted differently by two Courts of Appeal, “the split between the Courts of Appeal reflects uncertainty over what the phrase ‘toll the running of the probationary period’ means.” 56 Cal. 4th at 510 (citation and some internal quotation marks omitted). Moreover, here, as in Leiva, “[t]he term ‘toll’ is * While California law, unlike federal law, equates equitable tolling with suspension (see Lantzy v. Centrex Homes, 31 Cal. 4th 363, 370-71 (2003)), as noted above, state law is irrelevant to determining the meaningofa federal statute. See note 1, supra. not specifically defined in [the relevant statute] or anywhereelse in [the relevant code].” Jd. Respondents’ claim that Section 1367(d) has only one possible meaning also contradicts the cases upholding the Suspension Approach. For example, in Turner v. Kight, 957 A.2d 984 (Md. Ct. App. 2008), the court recognized that “[m]ost of the courts that have been called upon to construe the meaningof‘tolled’ as used in the context of statutes of limitations, including under § 1367(d), have recognized that the term can have more than one meaning.” Jd. at 989 (emphasis added). Consequently, most courts have recognized that the statute is ambiguous. See id. (“Several of the cases dealing with the application of § 1367(d) acknowledge, tacitly or directly, that the phrase in question could be construed in different manners, and, indeed, the courts have split on what the proper interpretation should be. If the learned appellate judges around the country cannot agree on the meaning and application of the phrase, it cannot be said to have only one reasonable interpretation”); Berke v. Buckley Broad. Corp., 821 A.2d 118, 123 (N.J. Super. Ct. App. Div. 2003) (referring to the statute’s “ambiguous use of the word ‘tolling”). Indeed, as Turner demonstrates, even the cases that support Respondents’ interpretation of the statute reject their conclusion that “toll’. . . is only susceptible to a single meaning.” RB 17.° * Respondents rely on cases stating that the California courts should accord “great weight” to the decisions of the lower federal courts when construing a federal statute. RB 8 (citing Venegasv. Cnty. of Los Angeles, 32 Cal. 4th 820, 835 (2004)). But such decisions are not binding; indeed, in Venegas itself the Court refused to follow two Ninth Circuit decisions. See also Graham v. Scissor-Tail, Inc., 28 Cal. 3d 807, 828-31 (1981) (refusing to follow two unreported federal district court decisions); cf People v. Memro, 11 Cal. 4th 786, 882 (1995) (“Federal circuit court opinions do not bind us” on issues of federal constitutional law. “They may serve as persuasive authority, of course, but only whenthey are just that—persuasive”). Andit is risible to suggest that two federal decisions in the same case represent somesort of “consensus” to which this Court must defer. RB 20 n.5. (continued ...) Respondents contend, notwithstanding these cases, that no conflict of interpretation exists because Berke v. Buckley Broad- casting Corp., 821 A.2d 118, 123 (N.J. Super Ct. App. Div. 2003), “expressly refused to follow § 1367(d)’s plain language.” RB 15. To the contrary, as just noted, Berke expressly recognized that the statute’s “use of the word ‘tolling’ was “ambiguous.” 821 A.2d at 123. Moreover, Berke squarely held that “we are satis- fied that the ‘tolling’ provision of the statute refers to the period between the runningof the statute while the action is pending in the federal court and thirty days following the final judgment of the federal court declining to exercise supplementaljurisdiction.” Id. Similarly, in Zhang Gui Juan v. Commonwealth, No. 99-032, 2001 WL 34883536 (N.M.I. Nov. 19, 2001), the court stated that “§ 1367(d) operates only to toll the limitations statute during the specified period, and to allow a party to refile within 30 days after dismissal from federal court.” Jd. at *4. Accordingly, the court recognized that “tolling” can mean “prevent from expiring.” Berke and Zhang Gui Juan therefore contradict Respondents’ claim that “tolling,” as used in Section 1367(d), can have only one meaning.* (... continued) Moreover, the principle invoked by Respondents doubtless makes sense when construing most federal statutes, which presumably are applied most often by federal courts. In this case, however, the federal statute applies to proceedings in state, not federal, court; and has therefore been construed most often by the state courts. Accordingly, there is no reason to give greater weight to the two federal courts that have construed Section 1367(d) than the nine state courts that have doneso. “In addition, Respondents have no answerto Kern’s argument (AOB 11) that Section 1367(d) should be construed in light of Fumero Soto's then-recent recognition that the “tolling” of a statute of limitations can have several different “tolling effects.” C. Respondents’ Remaining Arguments That Section 1367(d) Has Only One Possible Meaning Are Meritless. Respondents’ other textual arguments are nothing more than disguised iterations of their “tolled’ means ‘suspended” argu- ment. For example, they argue that their interpretation of the statute is preferable because it applies in every case. RB 14-15. But, as Appellants pointed out in their Opening Brief, this argu- ment presumes the very point it seeks to prove: that “tolled” means “suspended.” AOB 11. If it does not, this argumentdis- appears. For example, if “shall be tolled” means “shall not expire,” the statute will apply in all cases whereit is operative— 1.é., all cases where the statute would otherwise expire during the tolling period—no more and no less. The Suspension Approachis therefore unnecessary to give effect to all the wordsin thestat- ute. Nor are Respondents helped by their claim that “Kern asks this Court to hold that the state statute of limitations period con- tinues running while the federal case is pending” (RB 18 (empha- sis in original)), thereby somehow contradicting its “tolling” pro- vision. Appellants have never made any such argument. No one—neither Appellants nor Respondents—contends that the statute of limitations for a supplemental claim expires while the claim is being litigated in federal court. All Appellants contendis that if the statute would otherwise have expired while the case is pending but for the statute, the plaintiff has thirty days from dismissal in which to refile its case. There is nothing incon- sistent about that. Respondents next argue that Appellants’ interpretation con- tradicts the fact that, in their view, Section 1367(d) “mandates two tolling periods.” RB 17. This argument, too, attacks a straw man. No one disputes that the operative period of the statute begins when a federal lawsuit is filed and ends thirty days after the supplemental claim is dismissed. But the statute does not distinguish between the two portionsof this “tolling period”—z.e., the period when the federal case is pending and the thirty-day -8- period after dismissal. To the contrary, if the statute of limita- tions would otherwise expire, or run, at any point during that period, the thirty-day deadline becomesoperative. The sameis true for Respondents’ claim that “Kern’s imposi- tion of a maximum 30 dayrefiling window impermissibly negates the first tolling period in § 1367(d)’—i.e., the portion of the stat- ute that provides for tolling while the state claim is pending in federal court. RB 18. That, too, is wrong. No one disputes that the main purposeof Section 1367(d) is to “prevent the limitations on... supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court.” Jinks v. Richland Cnty., 538 U.S. 456, 459 (2003). Consequently,thefirst “tolling period” contained in Section 1367(d) does just that, and is not meaningless or “negated” under Appellants’ interpretation. D. The Extension Approach Best Accommodates The Competing Interests At Stake By Avoiding The Forfeiture Of State Law Claims Dismissed By A Federal Court While Giving Plaintiffs Ample Opportunity To Refile Such Claims After Dismissal. Once the Court concludes, as it must, that Section 1367(d) is ambiguous, it may then consider which interpretation of the statute best serves the policies that the statute was enacted to promote. That issue is not even close, because Respondents’ interpretation of the statute permits interminable delays in pros- ecuting litigation for no good reason. “When a term or phrase in a statute is unclear or contains a latent ambiguity, we may look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” Leiva, 56 Cal. 4th at 510 (citation and internal quotation marks omitted); Coan v. State, 11 Cal. 3d 286, 294 (1974) (ambiguity is condition for resort to extrinsic aids but finding federal statute not ambiguous on point at issue); Bldg. Indus. Ass’n v. State Water Res. Control Bd., 124 Cal. App. 4th _9- 866, 883-84 (2004) (analyzing extrinsic aids to determine mean- ing of federal statute). For example, in Leiva, the Court con- strued an ambiguoustolling statute by looking at “the legislative history behind the language, the objectives of the statute, and relevant public policy considerations.” 56 Cal. 4th at 511. Each of these factors supports Appellants’ interpretation of Section 1367(d). (1) The Legislative History. As Appellants stressed in their Opening Brief (AOB 12-13), Section 1367(d) is part of a statute— the Judicial Improvements Act of 1990—that Congress enacted “to promote for all citizens—rich or poor, individual or corpora- tion, plaintiff or defendant—the just, speedy, and inexpensive resolution of civil disputes.” S. Rep. 101-416, at 1 (1990), reprinted in 1990 U.S.C.C.A.N. 6802, 6804. Respondents ignore this purpose, contending that “Kern’s professed concern about delay” ignores the fact that when “there is no pending lawsuit,” there is no increase in the costof litigation. RB 28. In fact, how- ever, as the quoted language from the Senate Report reveals, Congress wanted to reduce both the delay andthe costs of litiga- tion. Appellants’ interpretation of Section 1367(d) does just that because it requires plaintiffs to promptly refile dismissed claims in state court. In contrast, Respondents’ interpretation permits litigants to sit on dismissed claims for months, or years, for no good reason.° Nor are Respondents aided by the House Report on which they rely. That report states that the Section 1367(d)’s purpose “is to prevent the loss of claims to statutes of limitations where state law mightfail to toll the runningof the period of limitations ° Respondents also imply that the Senate Report is irrelevant becauseit concerned the Judicial Improvement Act as a whole,of which Section 1367(d) is only a part. RB 26. However, as noted at the outsetof this brief, this contention (like Respondents’ brief as a whole) ignores the fundamental rule of statutory construction requiring that statutes be construed in their statutory context. See p.1, supra. -10- while a supplemental claim was pending in federal court.” H. Rep. 101-734, at 30 (1990), reprinted in 1990 U.S.C.C.A.N. 6860, 6876; accord, Jinks, 538 U.S. at 459 (Section 1367(d)’s pur- pose wasto “prevent the limitations period on... supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court’) (emphasis added). Contrary to Respondents’ claim (see RB 27), the Suspension Approach fur- thers this purpose no better than the Extension Approach. That is because both approaches prevent state law claims from expir- ing while they are being pursued in a federal forum. And while the Suspension Approach “provides greater protection of plain- tiffs’ claims after dismissal from federal court” (id. (emphasis added)), nothing in the legislative history of Section 1367(d) even remotely suggests that Congress meant to prevent claims from expiring while the plaintiffs sat on their hands for months, or even years, after their claims had been filed and then dismissed. (2) The Legislative Purpose. Because Respondents cannot show that the express purpose of Section 1367(d) supports their interpretation of the statute, they make one up, contending that “the purpose of § 1367(d) is to preserve state law claims. RB 27. But as the snippet they quote from the House Report acknowl- edges, the purpose of Section 1367(d) was narrower: to keep state law claims from expiring while they were beinglitigated in fed- eral court. Both the Suspension Approach and the Extension Approach do that. But this purposeis served as long as plaintiffs with dismissed supplemental claims are given an adequate opportunity to refile. It is not furthered by giving them addi- tional and unnecessary monthsoryearstolitigate their claims in state court. Respondents’ argument to the contrary is based on the prem- ise that it takes more than thirty daysto refile a dismissed state law claim in state court. Indeed, they give this case as an exam- ple, contending that a thirty-day deadline “ignores therealities of litigation involving large public agencies and multiple parties, -11- particularly in the uncommon circumstances here where Respondents had prevailed on the merits of multiple claims, were dismissed from federal court on unusual standing grounds, retained a successful federal claim to be decided anew in state - _ court, and hoped for non-judicial resolution of the matter.” RB 28. Indeed, they claim that “[aluthorizing, organizing, and staffing majorlitigation among multiple large government agen- cies, private parties, and a trade association is a big undertaking, often requiring decisions made by government boards at regu- larly-held public meetings, which wouldbedifficult to accomplish in 30 days underany circumstances.” Jd. Respondents seem not to have read their own brief. Despite the supposedly enormous burdens that they faced in trying to refile their state-law claims, by their own account they somehow managed to refile this case a week after the County allegedly “first stated its intent to enforce Measure E against Respondents.” RB 30-31. If Respondentscanrefile this case in a week, surely other plaintiffs will be able to refile their claims in thirty days, particularly since those claims, by definition, will already have been subject to the pre-trial investigation required by Rule 11(b) of the Federal Rules of Civil Procedure and then litigated (often for years) in federal court. Indeed, Respondents themselves acknowledge that plaintiffs who promptly file in fed- eral court—as they did—are likely to promptly refile in state court. RB 27-28. The Suspension Approach thusignoresthe reality that refiling a dismissed claim in state court is not the initiation of a new law- suit. Instead, it requires only therefiling of claims that have already been investigated and litigated and that typically require nothing more than a change of caption. Consequently, Respondents advance no plausible argument that the elastic time -12- limits created by the Suspension Approach serve any useful pur- pose.® (3) The Relevant Public Policy Considerations. Because the Suspension Approach is unnecessary to further Section 1367(d)’s stated goals, Respondents are left to assert that Appellants’ interpretation of the statute “discourages diligent plaintiffs, becauseearly filing in federal court is in effect punished by a loss of the remaining timein the limitations period, to be replaced by only 30 days.” RB 27. No such “punishment” exists. Under Appellants’ interpretation, no plaintiff would ever haveto file a state court complaint in less than the limitations period provided by state law. And while the plaintiff who files his or her federal case promptly and the dilatory plaintiff would both have thirty days after dismissal to refile their state-law claims, such even- handed treatment hardly constitutes “punishment.” Moreover, Respondents’ blithe assurance that “the policy to protect defendants from stale claims does not apply where a prior action has been filed, because the defendant is already on notice of the claims” (RB 29) ignores the realities of litigation and the need for finality. While defendants receive notice when a sup- plemental claim is first filed in federal court, the utility of that notice disappears whena plaintiff lets its state law claims remain in limbo for months or years after dismissal by a federal court. During that period, witnesses can die, becomeill or move out of ° Respondents quote Moore’s Federal Practice as stating that Section 1367(d) “shows a preference for allowing supplemental state claims to be heard in state court.” RB 27 (quoting 16 JAMES WM. MOORE, MOORE’S FEDERAL PRACTICE §106.66[3] [c] at 106-103 (3d ed. 2013) (“MooRE”)). But the whole sentence, which Respondents have conveniently truncated, supports Appellants’ interpretation: “the statute shows a preference for allowing supplemental state claims to be heard in state court if the jurisdiction-conferring claim is dismissed, and provides a brief window ofprotection that allows the plaintiff to file in state court without having to face a limitations defense.” MOORE, §106.66[3][c] at 106-103 (emphasis added). -13- state, and memories of healthy witnesses deteriorate. Thereis thus every reason to require plaintiffs to refile promptly—and, given the adequacy of the thirty-day period—no reason not to. For that reason, the Kolani court wascorrect in holding that the Extension Approach “upholds the policy of the statute of limita- tions, by /imiting the timeto refile, and thus assuring that claims will be promptly pursued in any subsequent action.” Kolaniv. Gluska, 64 Cal. App. 4th 402, 409 (1998) (emphasesin original). It therefore is fair to both plaintiffs and defendants, as Congress intended. See AOB 13; cf People v. Leiva, 56 Cal. 4th 498, 516 (2013) (adopting construction of tolling language that “does not prejudice or benefit either the prosecution of the defendant”). In contrast, the Suspension Approach “is contrary to the policy in favor of prompt prosecution of legal claims” embodied in state statutes of limitation. Huang v. Ziko, 511 S.E.2d 305, 308 (N.C. Ct. App. 1999); accord, Kolani, 64 Cal. App. 4th at 409 (Suspen- sion Approach is “unreasonable” and “does significant harm to the statute of limitations policy”). Finally, Respondents imply throughout their brief that the policy in favor of deciding claims on the merits outweighs the policy favoring prompt prosecution. See RB 2 (“Kern’s focus on the general purpose of statutes of limitations to protect defend- ants is completely balanced, if not outweighed, by the interest in allowing a determination of supplemental state law claims on the merits”); id. at 9 (“Respondents submit that the wording of §1367(d) and federal and California precedent support applying tolling in the usual manner of suspending the running of the clock, which serves the equally,if not more, valid legislative goal of allowing state claims to be decided on the merits after supple- mental jurisdiction in the federal court ends”). Contrary to these implications, however, “[t]he two public policies” at issue here— “the one for repose and the other for disposition on the merits— are equally strong, the one being no less important or substantial than the other.” Norgart v. Upjohn Co., 21 Cal. 4th 383, 396 -14- (1999). Accordingly, where no public purpose is served by giving plaintiffs additional and unnecessary monthsor yearstorefile a _ dismissed federal claim, the public policy in favor of resolving claims promptly must prevail.’ “Respondents cite the statement in Lewis v. Superior Court, 175 Cal. App. 3d 366 (1985), that the “purpose of statutes of limitations—to protect defendants from prejudices resulting from stale claims—does not operate to compelstrict application of the statute where the plaintiff has diligently acted so as to provide the defendant with prompt notice of the claim.” RB 29 (quoting Lewis, 175 Cal. App. 3d at 375-76). But Lewis did not involve a situation like this case, wheretheplaintiff files one action that is dismissed for reasons other than the merits and then files a second lawsuit. In those cases, the rules governing equitable tolling require “reasonable and good faith conduct on the part of the plaintiff.”. McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 102 (2008) (citation and internal quotation marks omitted). Accordingly, equitable tolling may be unavailable in situations wheretheplaintiff delays filing the second action even if the limitations period has not yet run under the Suspension Approach. See Collier v. City ofPasadena, 142 Cal. App. 3d 917, 932 (1985) (refusing to decide if disability pension claim would have been timely hadplaintiff filed it at the end of the suspended limitations period). -15- CONCLUSION The Courtof Appeal’s decision should be reversed.® ~ Dated: November 13, 2013. Respectfully, ARNOLD & PORTER LLP STEVEN L. MAYER COUNTY OF KERN THERESA A. GOLDNER MARK L. NATIONS HOGAN LAW APC MICHAEL M. HOGAN By: He. Co STEVEN L. MAYER Attorneys for Appellants County of Kern andKern CountyBoard of Supervisors *It is unnecessary to respond to the final section of Respondents’ Brief which, in violation of Rule 8.520(b)(3), addresses issues not includedin the limited grant of review. -16- CERTIFICATE OF COMPLIANCE PURSUANT TO CAL. R. CT. 8.504(d)(1) Pursuant to California Rule of Court 8.504(d)(1), and in reliance upon the word count feature of the software used, I certify that the attached Appellants’ Reply Brief on the Merits contains 4,953 words, exclusive of those materials not required to be counted under Rule 8.504(d)(3). Date: November 13, 2013. bh STEVEN L. MAYER ~ 34207060F PROOF OF SERVICE I am overeighteen years of age and nota party to this action. I am employed in the County of San Francisco, State of California. My business address is Three Embarcadero Center, 10° Floor, San Francisco, CA 94111-4024. On November13, 2013, I served the following document(s): APPELLANTS’ REPLY BRIEF ON THE MERITS I served the document(s) on the following person(s): SEE ATTACHED SERVICE LIST The document(s) was served by the following means: By U.S. mail. I enclosed the document(s) in a sealed envelope or package addressed to the person(s) at the address(es) listed above. I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business’ practice for collecting and processing correspondencefor mailing. On the same day the correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Dated: November 13, 2013. Leeue aN Cul Myra M. Da Cunha -l- Proof of Service SERVICE LIST Court of Appeal Case No. F063381 Supreme Court Case No. $210150 Gary J. Smith, Esq. Zachary M.Norris, Esq. BEVERIDGE & DIAMOND,P.C. 456 Montgomery Street, Suite 1800 San Francisco, CA 94104-1251 TEL: (415) 262-4000 FAX:(415) 262-4040 Email: gsmith@bdlaw.com znorris@bdlaw.com James B. Slaughter, Esq. BEVERIDGE & DIAMOND,P.C. 1350 I Street, N.W., Suite 700 Washington, D.C. Edward McClaren Jordan, Esq. OFFICE OF THE CITY ATTORNEY 200 N. Main Street, Ste. 700 Los Angeles, CA 90012 Attorneysfor Plaintiffs & Respondents City ofLos Angeles; R & G Fanucchi, Inc.; Responsible Biosolids Management, Inc.; Sierra Transport Michael J. Lampe, Esq. LAW OFFICES OF MICHAEL J. LAMPE 108 West Center Avenue Visalia, CA 93291 Attorneyfor Plaintiffand Respondent City ofLos Angeles Daniel V. Hyde, Esq. Paul J. Beck, Esq. LEWIS BRISBOIS BISGAARD & SMITH, LLP 221 North Figueroa Street, Suite 1200 Los Angeles, CA 90012 TEL: 213/250.1800 FAX: 213/580.7995 Email: hyde@Ibbslaw.com beck@Ibbslaw.com Attorneysfor Plaintiff& Respondent County Sanitation District No. 2 ofLos Angeles County Roberta Larson, Esq. Theresa A. Dunham,Esq. SOMACH, SIMMONS & DUNN 500 Capitol Mall, Suite 1000 Sacramento, CA 95814 TEL: 916/446.7979 FAX: 916/446.8199 Email: blarson@somachlaw.com Bradley R. Hogin, Esq. WOODRUFF, SPRADLIN & SMART A Professional Corporation 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 TEL: 714/558.7000 FAX: 714/83.7787 Email: Bhogin@wss-law.com Attorneysfor Plaintiffs & Respondents Orange County Sanitation District; California California Association ofSanitation Agencies Michael M.Hogan, Esq. HOGAN LAW APC 225 Broadway, Suite 1900 San Diego, CA 92101 TEL: 619/687.0282 FAX: 619/234.6466 Theresa A. Goldner, Esq. County Counsel Mark Nations, Esq. Chief Deputy County Counsel COUNTY OF KERN Administrative Center 1115 Truxtun Avenue, Fourth Floor Bakersfield, CA 93301 TEL: 661/868.3800 FAX: 661/868.3805 Email: tgoldner@co.kern.ca.us ccolins@co.kern.ca.us mnations@co.kern.ca.us Attorneysfor Defendants/Appellants County ofKern and Kern County Board ofSupervisors Jerome B.Falk, Jr. Three Embarcadero Center, 10" Floor San Francisco, CA 94111 TEL: 415/738-8442 FAX: 415/471-3400 Email: jerryfalk20@gmail.com Clerk California Court of Appeal Fifth Appellate District 2424 Ventura Street Fresno, CA 93721-3004 Hon.Lloyd L. Hicks Judge of the Superior Court Tulare County Superior Court Visalia Division 221 S. Mooney Boulevard Visalia, CA 93291 Clerk Tulare County Superior Court Visalia Division 221 S. Mooney Boulevard Visalia, CA 93291