Farrow v. Contra Costa Cnty., Case No. 12-cv-06495-JCS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtJOSEPH C. SPERO Chief Magistrate Judge
PartiesJOHN FARROW, et al., Plaintiffs, v. CONTRA COSTA COUNTY, Defendant.
Docket NumberCase No. 12-cv-06495-JCS
Decision Date02 January 2019

JOHN FARROW, et al., Plaintiffs,
v.
CONTRA COSTA COUNTY, Defendant.

Case No. 12-cv-06495-JCS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

January 2, 2019


ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO EXCLUDE EXPERT TESTIMONY

Re: Dkt. Nos. 125, 126, 128

I. INTRODUCTION

Plaintiffs John Farrow and Jerome Wade brought this putative class action asserting a number of claims based on the alleged failure of Defendant Contra Costa County (the "County") to provide appointed counsel at Plaintiffs' first court appearances, or within a reasonable time thereafter, in criminal proceedings in state court. After multiple motions to dismiss, an appeal to the Ninth Circuit, and remand to this Court, Plaintiffs' remaining claims are for failure to provide counsel as required by the Sixth Amendment within a reasonable time after the right attached, and for a writ of mandamus to enforce Contra Costa Public Defender Robin Lipetzky's obligations under section 27706 of the California Government Code. In accordance with the case schedule set by the Court, the parties now bring cross motions for summary judgment on Plaintiffs' individual claims before the question of class certification has been addressed, and the County moves to exclude the opinions of Plaintiffs' expert witness. The Court held a hearing on January 19, 2018. For the reasons discussed below, the County's motion to exclude expert testimony is GRANTED IN PART, Plaintiffs' motion for summary judgment is DENIED, the County's motion for summary judgment is GRANTED as to Plaintiffs' Sixth Amendment claim, and Plaintiffs' state

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law claim is DISMISSED for lack of jurisdiction.1

II. BACKGROUND

A. Procedural History and Allegations

1. May 2013 Order

Plaintiffs' original complaint included six claims against Robin Lipetzky, the Contra Costa County Public Defender: (1) violation of Plaintiffs' right to counsel under the Sixth Amendment; (2) violation of Plaintiffs' right to a speedy trial under substantive due process protections of the Fourteenth Amendment; (3) violation of Plaintiffs' right to a speedy trial under procedural due process protections of the Fourteenth Amendment; (4) violation of Plaintiffs' procedural due process rights under the Fourteenth Amendment with respect to the timing of Plaintiffs' bail hearings; (5) violation of California Civil Code sections 52 and 52.1; and (6) a claim for a writ of mandate to enforce California Government Code section 27706. See Order Granting Def.'s Mot. to Dismiss Compl. ("May 2013 Order," dkt. 47) at 5-6.2

The Court held that Plaintiffs' right to counsel attached at their first court appearances, but that neither that appearance nor the waiting period before the second appearance was a "critical stage" at which counsel was required. Id. at 14-20. The Court also held that the delay in appointing counsel between the time of attachment and the second appearance—which, unlike the first, was a critical stage—did not violate the Supreme Court's instruction that counsel must be provided within a reasonable time after attachment, because the delay was shorter than in other district court cases that found no violation, and because Plaintiffs did not adequately allege that they were prejudiced by the delay. Id. at 20-22 (citing Rothgery v. Gillespie County, 554 U.S. 191 (2008)). The Court therefore dismissed Plaintiffs' Sixth Amendment claim with leave to amend. Id. The Court also dismissed Plaintiffs' other federal claims with leave to amend, for reasons that are not relevant to the present motion because Plaintiffs did not renew those claims. Id. at 23-31.

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With no federal claims remaining, the Court declined to exercise supplemental jurisdiction over Plaintiffs' state law claims. Id. at 31-32.

2. August 2013 Order

After the Court dismissed the initial complaint, Plaintiffs amended their complaint twice, and Lipetzky moved to dismiss the second amended complaint. See generally Order Granting Def.'s Mot. to Dismiss 2d Am. Compl. (dkt. 69).3 The Court granted that motion and dismissed all claims, although it allowed Wade leave to amend his Sixth Amendment claim. Id. at 1-2.

With respect to the Sixth Amendment claim, the Court reaffirmed its previous holdings that neither the first appearance nor the waiting period before the second appearance was a critical stage at which Plaintiffs were entitled to counsel, but the second appearance was a critical stage. Id. at 22-26 (citing Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054 (9th Cir. 2013), subsequently superseded sub nom. Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014) (en banc)4). Turning to the question of whether the challenged policy failed to provide counsel within a reasonable time after attachment of the right, the Court held that although Plaintiffs added allegations regarding the effect of the delay, the allegations did not sufficiently identify any actual prejudice that Plaintiffs suffered as a result. Id. at 26-27. Because Plaintiffs came closer to plausibly alleging prejudice to Wade than to Farrow, the Court dismissed Wade's Sixth Amendment claim with leave to further amend but dismissed Farrow's claim with prejudice.

The Court dismissed Plaintiffs' remaining federal claims with prejudice, for reasons that are not relevant to the present motion, and again declined to exercise supplemental jurisdiction over Plaintiffs' state law claims. Id. at 28-35. Wade declined to further amend his Sixth Amendment claim, and Plaintiffs instead appealed to the Ninth Circuit.

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3. Ninth Circuit Decision and Denial of Certiorari

The Ninth Circuit affirmed this Court's dismissal of Plaintiffs' due process and equal protection claims. Farrow v. Lipetzky, 637 F. App'x 986, 987-88 (9th Cir.) (dkt. 81), cert. denied, 137 S. Ct. 82 (2016). As for Plaintiffs' Sixth Amendment claims, the panel affirmed this Court's conclusion that, on the facts alleged, Plaintiffs' first court appearance was not a critical stage that required the presence of counsel. Id. at 988. The panel held that this Court erred, however, in its analysis of whether counsel was appointed within a reasonable time after attachment of the right, and remanded for consideration of that issue under the correct legal standard:

The remaining question is whether Lipetzky appointed counsel within a "reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself." Rothgery, 554 U.S. at 212. In other words, how soon after the Sixth Amendment right attaches must counsel be appointed, and at what point does delay become constitutionally significant? Instead of addressing whether the delay in appointing counsel was unreasonable, the district court considered only whether the delay "impacted [plaintiff's] representation at subsequent critical stages of his proceedings." By framing the question in that way, the district court erroneously required the plaintiffs to allege actual prejudice. See United States v. Wade, 388 U.S. 218, 225, 236-37 (1967) (finding a Sixth Amendment violation based on the "grave potential for prejudice"); Hamilton v. Alabama, 368 U.S. 52, 54 (1961) (finding a Sixth Amendment violation where the absence of counsel "may affect the whole trial"). We therefore remand for the district court to consider whether appointing counsel five to thirteen days and "sometimes longer" after the right attaches complies with the "reasonable time" requirement articulated in Rothgery.

Id. at 988-89 (alteration in original). The panel also directed this Court to reconsider whether supplemental jurisdiction over Plaintiffs' state law claims is appropriate in light of the Court's reconsideration of the Sixth Amendment claim. Id. at 989. The Supreme Court denied Plaintiffs' petition for certiorari on October 3, 2016. See dkt. 102.

4. Third Amended Complaint and Facts Subject to Judicial Notice

Following remand to this Court, Plaintiffs filed their operative third amended complaint, alleging that Lipetzky implemented a written policy that "arbitrarily withheld legal representation to indigent, in-custody criminal defendants for a period of 5 to 13 days after their initial Court appearance." 3d Am. Compl. ("TAC," dkt. 91) ¶ 1. Under that policy, Plaintiffs alleged that a

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defendant would not receive counsel at the defendant's first court appearance, but if a defendant requested counsel at that appearance and could not afford to pay, the court would set bail, refer the defendant to the public defender, and continue the case for a "further arraignment" several days later. See id. ¶¶ 1-2, 4, 21, 27, 36.

Plaintiffs alleged that Farrow was arrested on August 30, 2011, based on allegations that he had assaulted his domestic partner. Id. ¶¶ 25, 31. He first appeared in court on September 2, 2011, at which time the judge asked if he could afford counsel and would like the court to appoint counsel. Id. ¶¶ 26-27. Farrow replied that he could not afford counsel and would like appointed counsel, and the judge "set bail, 'referred the matter to the Public Defender,' and continued the matter to September 15, 2011 for 'further arraignment.'" Id. ¶ 27. The judge also asked the probation department to prepare a bail study, which according to Plaintiffs was prepared during the period between the two court appearances and included only information unfavorable to Farrow because, without counsel, there was no way for him to provide mitigating information such as his ties to the community or employment status. Id. ¶ 28. The judge did not advise Farrow of his right to enter a plea at the first appearance, and Farrow remained in jail for the next thirteen days. Id. ¶ 27.

Plaintiffs alleged that Farrow was appointed counsel and entered a plea at his second appearance on September 15, 2011, which was sixteen days after his arrest and thirteen days after his first appearance. Id. ¶ 29. According to Plaintiffs, the delay in Farrow obtaining...

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