The 9th Circuit Just Tossed Two of the AB 2098 cases; Now What?

The 9th Circuit Just Tossed Two of the AB 2098 cases; Now What?

On Thursday afternoon, February 29th, the Ninth Circuit basically ended the AB 2098 litigation. The actual decision held that the McDonald appeal of Central District Judge Slaughter’s denial of a preliminary injunction against the law was moot, because AB 2098 enacted as Bus. & Prof Code 2270 had been repealed as of January 1st. The decision covered the related Southern District case where the judge refused to decide the preliminary injunction motion because of the pending McDonald appeal. The Ninth Circuit sent those two cases back to their respective district court judges with instructions to vacate their orders and dismiss the cases.

Here is the opinion for those interested. 9thcircutmootnessdecision

So that’s the end of the story, right? Well not so fast!

What about my case Hoang v. Bonta, and the related case Hoeg?

Since I am the attorney (with RFKjr) on Hoang, I can give you the backstory and explain where we are and how we got there.

In mid-September 2023, it was reported that the Cali. Legislature added a provision to SB 815 repealing Section 2270 to be effective Jan 1. 2024.

Back in the spring 2023, Judge Shubb set out a scheduling order calling for summary judgment motions on the challenges to the law in both Hoang and Hoeg. The hearings were scheduled for January 8, 2024 with summary judgment motion papers to be filed by the end of September. I had been working on our summary judgement motion when I got the news of that the law was going to be repealed and that took the wind out of my sails. I mean, what’s the point of spending the time on summary judgment when by the time of the hearing, the law would be gone? No point, as far as I was concerned.

After thinking about it, I decided to try to pivot the case to the new problem, the Board using its standard of care authority to go after the very same conduct! I tried to do that within the confines of the Hoang case (which my friend and colleague thought was the wrong move, and Ray proved to be right).

The Hoeg attorneys decided to go balls-to-the-walls on summary judgment and filed their summary judgment papers. We had a status conference with the judge on December 18th, and he said he wasn’t going to consider summary judgment until after there was a formal motion and decision on whether the case was moot because of the upcoming repeal. Well I called that one right.

But, he was also extremely skeptical of my effort to pivot to the standard of care issue within the Hoang case. He basically told me to file a new lawsuit instead of my attempt to turn the Hoang case into a new challenge.

So, the day after the status conference, I moved full-speed backwards, withdrew my pivot motion (technically a Rule 16(b) and 15 motion) because as they say, “he who fights and runs away lives to fight another day.” And I had yet to lose a motion before the judge, and why start now, especially after he gave me some pretty good, if blunt advice.

Per my previous posts, on January 2, 2024 we filed Kory v Bonta, and moved for a preliminary injunction.

The parties agreed to a paper filing schedule on the mootness motion. The Defendants filed their motions at the end of January and our and Hoeg’s response was due on February 29th, close of business. The hearing on the Motion to Dismiss was set for April 1st.

For the same reasons why I didn’t want to file a summary judgment motion, I really, really didn’t want to spend the time writing an opposition memo to mootness, for among other reasons, because I think the two cases are moot, especially since I moved the Hoang plaintiffs into the Kory case, and Kory is where the action and the actual problem is.

And I had set the Kory preliminary injunction hearing for April 1st, right after the mootness hearing. I couldn’t quite figure out how I would ask the court to exercise its equitable powers in Kory while arguing that it should also decide whether and how a repealed law could hurt my clients in Hoang who were also my clients in Kory! Maybe there is some lawyer out there who could pull that one off, but I couldn’t/can’t. More to the point, what lawyers primarily sell/present to judges is their credibility.

So, about about a week before the due date of our response, I prepared a short letter to the judge explaining that we are not going to submit a brief in opposition to mootness because we chose spend our time litigating Kory. I usually file responses right before close of business on the due date. But I woke up on Thursday the 29th and got a call from the universe which told me to get the letter on file early, so that’s what I did, at 6:29 am Cali time. For those who want to see how a lawyer pivots from one case to the other, (a tactical retreat), here is my letter to Judge Shubb. filestampletterresponsetoMTD And of course, later that day the 9th Circuit’s decision came down. Thank you Mrs. Universe!

I think the Hoeg lawyers had told me that they had different/better arguments on mootness than what the McDonald appellants had made, so I don’t know whether they are going to keep opposing the motion to dismiss. But of course, we are taking a different path. Based on the 9th’s opinion, I think the Judge will toss Hoeg, and we had already told the judge that we are not opposing the mootness motion, so Hoang will be gone as well. It will be up to the Kory case to determine the fate of the Covid misinformation prosecutions, for now at least.

If you are in the downtown Sacramento neighborhood on Monday April 1st, drop by the courtroom (1:30 PM, courtroom 5, 14th floor) and watch what I expect to be precedential and fun times. (The Judge has a pretty wry sense of humor, in part respectfully egged-on by yours truly).

So now you see how sausage is made. Welcome to my world. We’ll see how it tastes, probably within a few days after April 1st.

Rick Jaffe, Esq.

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