A bad decision, both on the procedural issues as well as on (at least part of ) the merits.
Some adult leaders and a couple members of a youth 4-H club make a film and submit it to the San Fernando Valley Fair for judging. The film is no "Reservoir Dogs" (or even "Pulp Fiction"), but it is a little bit messy, and includes a depiction of some tormented students killing their tormentors with machetes. The 4-H is irate, so they suspend the youths involved (as well as the responsible adults) from further participation in the 4-H club for around a month. Allegedly because they're concerned that this adult-sponsored film demonstrates a substantial risk that these kids will commit an actual Columbine-type massacre. Since the 4-H is a state actor (controlled by the Regents of the University of California), the plaintiffs sue for damages and injunctive relief. Justice Mosk not only affirms the dismissal of the suit on qualified immunity grounds, but also affirms the award of attorney's fees to the defendant, holding that the suit was objectively frivolous.
First, the procedural mistake. The relevant defendant moves for summary judgment on the basis of an affidavit she submits alongside the motion in which she describes her alleged conduct and motivation in suspending the students. Plaintiffs notice her deposition, but she refuses to show up. Plaintiffs don't promptly move to compel -- a mistake, for sure -- but instead claim in their opposition to her motion for summary judgment that her affidavit should be ignored because she's refused to be deposed, and that they need the deposition to obtain evidence that disproves her affidavit. The trial court rejects plaintiffs' claims and, based on defendant's affidavit, grants the motion for summary judgment.
Section 437c(h) would normally require a continuance of the summary judgment motion in such settings. One could make a plausible argument that plaintiffs didn't make the required showing that the requested deposition was necessary to obtain sufficient evidence to refute the summary judgment motion. One could make an even more plausible argument that, on the facts of this case, plaintiffs were insufficiently diligent in attempting to obtain the deposition. But Justice Mosk doesn't make any of those plausible arguments. Rather, he holds that plaintiffs waived this issue because they never formally moved to either compel or to continue the motion. But that's a clear misreading of the law. The courts have constantly viewed it as sufficient to make a Section 437c(h) request in your opposition to the motion for summary judgment rather than filing a formal separate motion. Indeed, in practice, that's precisely what most attorneys do. And that's exactly -- although inartfully -- what plaintiffs did here. They said that the motion shouldn't be granted without the deposition. That's enough to avoid waiver. You might perhaps have second-level arguments about plaintiffs needing affidavits or something like that, but not only does Justice Mosk not make any such claim, but plaintiffs may well have submitted the necessary paperwork anyway (one can't tell from the opinion). So Justice Mosk just gets this part wrong. And makes the law a little worse in doing so.
Second mistake. On the merits, Justice Mosk awards defendant her attorneys' fees because the lawsuit was frivolous. I couldn't more strongly disagree. Maybe defendant is right that her actions were reasonable, or at the least that she was entitled to qualified immunity. Though, given the facts, I could see a strong argument to the contrary. Remember: we're talking about suspending kids for a month for creating a movie -- under clear adult supervision -- that's not substantially different than those you see on television. I see a strong, strong argument that such conduct is protected by the First Amendment. But even if you think it's not, such a claim is hardly frivolous. Not in the slightest.
What's even more bizarre is that Justice Mosk holds that this lawsuit is frivolous almost exclusively on the basis of LaVine, a Ninth Circuit case that held that a troubled loner who wrote a violent poem about killing his classmates could permissibly be suspended from school. That case is distinguishable. It's one thing to hold that a disturbed student can be suspended when he, for no apparent reason, pens a disturbing personal missive that's facially about his own life and murders he might commit. This conduct is hardly comparable to the creation of a movie by a 4-H club under adult supervision for submission to a county fair. It's apples and oranges. Even if the content of the speech is slightly similar, the circumstances are worlds apart.
Regardless, even if you don't believe in the distinction, remember that the merits of LaVine itself garnered the dissents of both left- and right-wing members of the Ninth Circuit, including probably the brightest stars on both sides of the political spectrum! Judges Reinhardt, Kozinski, and Kleinfeld dissented from the denial of rehearing en banc in LaVine, arguing that even the bizarre student speech in that case was protected by the First Amendment. There's no doubt whatsoever how these jurists would vote in Robbins' case. So since the holdings of the Ninth Circuit are not binding in California state courts, what Justice Mosk is essentially contending is that the holdings of these jurists are objectively frivolous: that no reasonable mind could possibly hold such a view of the First Amendment. Which is absurd.
I generally like Justice Mosk's opinions. I also think that he's a bright guy. But he gets this one horribly wrong.
