Taking It To The Fricking Ninth Circuit: In Petition Filed Today Lunada Bay Boys Plaintiffs Ask Permission To Appeal Denial Of Class Certification! Judge Otero’s Many Manifest Errors Enumerated!! The Argument In One Sentence: “Absent an appeal, anarchy remains.”

… by making multiple manifest legal errors … the District Court denied Petitioners’ motion for class certification.
A little more than two weeks ago, federal district court judge James Otero denied class certification in the Lunada Bay Boys case, turning it into a merely personal dispute between a bunch of thuggish zillionaire surf-localist gangbangers and the few surfers brave enough to put their names on the case. Today, the plaintiffs filed a petition with the Ninth Circuit Court of Appeals asking for permission to appeal Otero’s decision immediately, rather than, I guess, waiting until the whole case is done, which is probably the more normal time to appeal. This is a so-called interlocutory appeal, in other words, which is made before the case which gives rise to it is settled. Obviously it would cause chaos if lawyers were allowed to appeal every random decision a lower court judge made while the actual case was proceeding, which is probably why it’s necessary to (a) ask the Ninth Circuit for permission to appeal and (b) to argue that the case will suffer “irreparable harm” if the appeal of the given order, in this case denial of class certification, isn’t allowed to proceed while the underlying case is ongoing. The basic argument seems to be this:

Californians have a constitutional right to access their public beaches. Accordingly, Petitioners ask this Court for the opportunity to appeal now, so that their motion for class certification can be given proper consideration under the correct interpretation of rule 23. As this Court has recognized, there is no reason for a plaintiff to litigate to finality “when a certification decision is erroneous and inevitably will be overturned.”

Most of this petition is far too technical for any discourse that I might construct upon it to be profitable for anyone, but the introduction is quite comprehensible and quite stirring. Turn the page to read that. Also, it’s worth reading the summary of the many points where Otero seemingly ignored the expertise of the plaintiffs’ witnesses, but I’m not reproducing that for technical reasons. You can find it, along with the nitty gritty technical nerdview, by reading the petition your own self, friend!


The scenic California coast provides inspiration the world over. Images of endless summers, perfect waves, palm trees, and timeless serenity are hallmarks of the Golden State. And for those who visit California’s public beaches, the coastline provides a multitude of recreational opportunities. Naturally, most people would be shocked to learn that at Lunada Bay—a public beach with direct public access located in one of California’s richest communities—a gang reigns from parking lot to surf, harassing and harming visitors, damaging their property, and through such terror tactics, keeps the public beach accessible to only a handful of insiders. This has been going on for decades. And for decades, the local police have looked the other way. Isn’t it time for this lawlessness to stop?

This petition arises from the civil rights action brought to end this tyranny and liberate Lunada Bay, thereby enabling the public to use this public beach without enduring the harassment, assault and battery, vandalism and police duplicity that continues to be leveled at all but those who have the gang’s approval. So if ever there was a situation calling for legal intervention, a suit brought on behalf of all those wanting access to public land and seeking enforcement of the law from the local police against the predatory gang keeping them out, this is the one. And if ever there was a case suitable for class action treatment, this is it.

Yet by making multiple manifest legal errors with respect to rule 23(a) and (b), including essentially treating the class certification motion as a merits trial, the District Court denied Petitioners’ motion for class certification. Absent these several errors, it is readily apparent that class certification should be granted. This questionable ruling by the District Court will essentially end Petitioners’ efforts to vindicate their rights and those of all members of the public being excluded from Lunada Bay. The lawlessness will continue unabated. So will the police duplicity.

Californians have a constitutional right to access their public beaches. Accordingly, Petitioners ask this Court for the opportunity to appeal now, so that their motion for class certification can be given proper consideration under the correct interpretation of rule 23. As this Court has recognized, there is no reason for a plaintiff to litigate to finality “when a certification decision is erroneous and inevitably will be overturned.”

Absent an appeal, anarchy remains. Members of the public willing to exercise their rights to visit Lunada Bay will continue to experience confrontation and conflict, and given the failure of the local police to take even modest measures to prevent such criminal activity, will be left exposed to violence with only dangerous self-help remedies to protect themselves. This cannot go on in the 21st Century at what should otherwise be another beautiful California beach open to all who respect the rule of law, not governed by a criminal gang who does not.

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