State Defendants’ Response to Notice of Related Case — Brach v. Newsom (C.D. Cal.)

Record facts

U.S. District Court, Central District of California · No. 2:20-cv-06472-SVW-AFM · Doc. 56 · 2020-08-27 · Docket on CourtListener

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State Defendants’ Response to Notice of Relate Case; Decl. D. Wessel (Case No. 2:20-cv-
06472) 
 
XAVIER BECERRA 
Attorney General of California 
JENNIFER G. PERKELL 
Supervising Deputy Attorney General 
DARIN L. WESSEL, State Bar No. 176220 
JENNIFER A. BUNSHOFT, State Bar No. 197306 
Deputy Attorneys General 
600 West Broadway, Suite 1800 
San Diego, CA 92101 
P.O. Box 85266 
San Diego, CA 92186-5266 
Telephone:  (619) 738-9125 
Fax:  (619) 645-2012 
E-mail:  Darin.Wessel@doj.ca.gov 
Attorneys for Defendants 
Gavin Newsom, in his official capacity as the 
Governor of California, Xavier Becerra in his 
official capacity as the Attorney General of 
California, Sonia Y. Angell, M.D., in her official 
capacity as the State Public Health Officer and 
Director of the Department of Public Health and 
Tony Thurmond, in his official capacity as State 
Superintendent of Public Instruction and Director 
of Education 
IN THE UNITED STATES DISTRICT COURT 
FOR THE CENTRAL DISTRICT OF CALIFORNIA 
WESTERN DIVISION – FIRST STREET COURTHOUSE 
 
 
MATTHEW BRACH, et al., 
Plaintiffs,
v. 
GAVIN NEWSOM, et al., 
Defendants.
 
Case No. 2:20-cv-06472 SVW (AFMx) 
 
STATE DEFENDANTS’ 
RESPONSE TO NOTICE OF 
RELATED CASE (ECF NO. 53); 
DECLARATION OF DARIN L. 
WESSEL  
Date: 
 
Time: 
 
Courtroom: 10A - Telephonic 
Judge: 
The Honorable Stephen 
V. Wilson 
Trial Date: 
Not set 
Action Filed:
7/21/2020
 
 
Case 2:20-cv-06472-SVW-AFM   Document 56   Filed 08/27/20   Page 1 of 5   Page ID #:3039

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State Defendants’ Response to Notice of Relate Case; Decl. D. Wessel (Case No. 2:20-cv-
06472) 
 
TO THE COURT: 
On the afternoon of August 25, 2020, proposed Amicus Curiae Educators for 
Safe School Opening filed a Notice of Related Case advising the Court and the 
parties of the prior similar case, Brach, et al., v. Newsom, et al., No. 2:20-CV-
06469 (C.D. Cal. Jul. 21, 2020).  ECF No. 53; Decl. D. Wessel, below, ¶ 2.  Earlier 
that same morning, counsel for Defendants Governor Newsom, et al. (State 
Defendants) was alerted to the fact that it appeared that Plaintiffs had filed two 
separate cases in quick succession (based on the case numbers), and then promptly 
dismissed the earliest-filed case after judicial assignments had been made in both 
cases.  Decl. D. Wessel, below, ¶¶ 2-5.   
The original complaint in Brach, et al., v. Newsom, et al., No. 2:20-CV-06469 
(C.D. Cal. Jul. 21, 2020), is identical to the original complaint in the present case.  
Decl. D. Wessel, below, ¶ 3.  Both complaints were filed on July 21, 2020.  Id., at 
¶¶ 3-4.  Judicial assignments were made in both cases on July 22, 2020.  Id., at ¶ 5.  
The very next day, on July 23, 2020, Plaintiffs filed their request for dismissal of 
the earlier-filed case assigned to be heard by Judge Consuelo B. Marshall.  Id., at ¶ 
6.  C.D. Cal. L.R. 83-1.3.1 obligated Plaintiffs and their counsel to file a Notice of 
Related Cases.1  They did not do so. 
While the earlier-filed case is identical to the original complaint filed in this 
case, the State Defendants nonetheless believe that judicial economy is best served 
by this case remaining before the Honorable Stephen V. Wilson.  The public 
interest is also best served by this case remaining with the Honorable Stephen V. 
Wilson, in light of the current advanced stage of the proceedings, as well as the 
importance and complexity of the issues presented.   
 
1 By filing two identical complaints in short succession and then, 
immediately after learning of the judicial assignment in both cases, dismissing one 
case, Plaintiffs appear to have attempted to circumvent C.D. Cal. L.R. 83-1.2.1, 
which precludes the improper dismissal and later refiling of the same action to 
obtain a different judge.  
Case 2:20-cv-06472-SVW-AFM   Document 56   Filed 08/27/20   Page 2 of 5   Page ID #:3040

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State Defendants’ Response to Notice of Relate Case; Decl. D. Wessel (Case No. 2:20-cv-
06472) 
 
Because a judicial reassignment at this time would likely result in a delay of a 
decision on the consequential question of whether a preliminary and/or permanent 
injunction should issue, the State Defendants believe that the interests of justice are 
best served by this case remaining with the Honorable Steven V. Wilson for a 
decision on the currently submitted matter. 
 
 
Dated:  August 27, 2020 
 
Respectfully submitted, 
XAVIER BECERRA 
Attorney General of California 
JENNIFER G. PERKELL 
Supervising Deputy Attorney General 
 
 
 
/s Darin L. Wessel 
DARIN L. WESSEL 
JENNIFER A. BUNSHOFT 
Deputy Attorneys General 
Attorneys for Defendants 
SF2020400794 
State Defendants Response to Notice of Related Case 
 
 
 
Case 2:20-cv-06472-SVW-AFM   Document 56   Filed 08/27/20   Page 3 of 5   Page ID #:3041

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State Defendants’ Response to Notice of Relate Case; Decl. D. Wessel (Case No. 2:20-cv-
06472) 
 
DECLARATION OF DARIN L. WESSEL 
I, Darin L. Wessel, declare as follows: 
1. 
I am an attorney duly admitted to practice before this Court.  I am a 
Deputy Attorney General with the California Office of the Attorney General.  I 
have personal knowledge of the facts set forth herein, except as to those stated on 
information and belief and, as to those, I am informed and believe them to be true.  
If called as a witness, I could and would competently testify to the matters stated 
herein.   
2. 
On the morning of August 25, 2020, I received an email from attorney 
Martin Anderson, who indicated he has been following this case.  He alerted me to 
the fact that plaintiffs filed what appeared to be an identical action – Brach, et al., v. 
Newsom, et al., No. 2:20-CV-06469 (C.D. Cal. Jul. 21, 2020).  Shortly thereafter, 
on the afternoon of August 25, 2020, I received ECF notice that proposed Amicus 
Curae Educators for Safe School Opening filed a Notice of Related Case, alerting 
the Court the existence of that same earlier filed case.  ECF No. 53. 
3. 
On the morning of August 26, 2020, I obtained a copy of the Complaint 
filed in Brach, et al., v. Newsom, et al., No. 2:20-CV-06469 (C.D. Cal. Jul. 21, 
2020).  The Complaint was filed on July 21, 2020.  A brief comparison of the two 
complaints indicates that the original complaints filed in both cases are identical.  
4. 
In the present case, Plaintiffs’ Complaint was also filed on July 21, 2020.  
ECF No. 1.  The Court issued the Notice of Assignment to Judge Pregerson on July 
22, 2020.  ECF No. 4. 
5. 
I also reviewed the docket for Brach, et al., v. Newsom, et al., No. 2:20-
CV-06469.  A notice of case assignment to Judge Consuelo B. Marshall was issued 
on July 22, 2020.  ECF No. 2 in No. 2:20-CV-06469.  A notice of case assignment 
to Judge Dean Pregerson was also issued in the present case on July 22, 2020.  ECF 
No. 4. 
/// 
Case 2:20-cv-06472-SVW-AFM   Document 56   Filed 08/27/20   Page 4 of 5   Page ID #:3042

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State Defendants’ Response to Notice of Relate Case; Decl. D. Wessel (Case No. 2:20-cv-
06472) 
 
6. 
On July 23, 2020, Plaintiffs filed a request for dismissal of the complaint 
in Brach, et al., v. Newsom, et al., No. 2:20-CV-06469.  ECF No. 4 in No. 2:20-
CV-06469. 
I declare under penalty of perjury under the laws of the United States of 
America that the foregoing is true and correct. 
Executed on this 27th day of August, 2020, at El Cajon, California. 
 
/s Darin L. Wessel 
 
Darin L. Wessel 
 
 
SF2020400794 
Declaration of Darin L. Wessel Request for Judicial Notice in Support of Opposition to TRO 2 
 
 
Case 2:20-cv-06472-SVW-AFM   Document 56   Filed 08/27/20   Page 5 of 5   Page ID #:3043

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