john morehead represent the opponent the cross complaint the bending of progressive west insurance company i would suggest to you that we have potentially a case of first impression in front of us with multiple issues it appears relatively simple in its pristine form but we have multiple conceptual hurdles we have to get through the issue as presented is whether or not a cross complaint class action the sword for the first time asked such after the passage of the class action fairness ac the ultimate cross claim defendant cross complaint defendant filed a relatively simple five thousand dollar collection action in state court that was done in december of two thousand and four prior to that proposition sixty four had been passed by the populace of the state of california significantly changing section thousand two hundred of the unfair competition law on feb seventeenth two thousand and five after the passage of proposition sixty four the progressive west is very important to understand the nature of what was filed at that point in time that is on feb seventeenth two thousand and five one day before february eighteenth two thousand and five the effect e date of cathy that complaint asserted several individual claims for breach of contract breach of the covenant of good faith and fair dealing a declaratory judgment action and purported to assert a claim under the u c l i e section seventeen two hundred ike i hope that the panel has looked at that complaint and compared it to the subsequent one we're going to be talking about but that complaints on the u c l a claim a certain individual cause of action he then purported to assert on behalf of the general public and that's the language in the document on behalf of the general public a claim under section seventeen two hundred whether the individual plaintiff on his individual behalf had standing whether restate declined the court said yes and wrote an opinion after that in two thousand and six the cross complaint was amended and it was amended in the depression house counsel will say it was amended to cure deficiencies or to comply with section seventeen two hundred i e proposition sixty four that complaint across complaint for the first time alleged a class action for the very first time it says class action it sets out the components of section three eighty two that's the chronology that we have to bob and weave to through to get to through the issues let me go back to the initial filing of the cross complaint use of your e the seventeenth this and pose two questions about that the answers of which i think i know but let me check to make sure this or first was that action removable at that time by your client based on diversity or anything else other than cattle leave kept out of it for the moment did answer is no for two reasons or multiple reasons number one a fair reading of that that cross complaint makes it clear that there is no representative action keep in mind that that cross complaint is filed post proposition sixty four and it does not comply with proposition sixty four well for the  calf out of it i'm really asking whether diversity or some other basis might exist but i want to get the catheter raised that question the answer is no but i think it's important for me to follow up on that point because we've briefed aggregation as if the claim in there under the u c l a you see all was viable but it's very important to my argument to establish it was that complaint on behalf could not be filed in that form number one number two there was the versity but there was no and the controversy and the plaintiffs would argue over the counter counter calling that the plaintiffs would argue that it's damages would be there if there was nothing on the face of that complaint that gives any and the key indication of remove ability we would have had the burden of proof then to remove i cannot believe with that we would have sustained it number one number two in this proceeding where we find ourselves i believe they have the burden to prove that it was absolutely removable but it was not so the answer is no authorized to file an action on behalf of the general public or the california attorney general and certain local public officials is a dramatic change in your law in the state law under prop sixty four this purported to do that what prop sixty four did was say you can't do that no private individual can file that kind of action prop sixty four also change the standing there had to be has to be actual harm injury in fact and a nexus to to the alleged wrong in addition a class action has to be pled under section three eighty two of the code nothing in that complaint does that we've fully briefed that even if you do have any credibility to that that you cannot aggregate so now to get it through all the issues first issue what happened is the district court after we remove this is the first time this case is removable under catherine it's the first time that it is important to be a class action under caf you now can aggregate to five million dollars when you have more than one hundred numbers in the future to class  and all of that none of those things are contesting the district court however said and that is an absolute rule you cannot remove if you were originally the plaintiff and relies on shamrock in south honor so we have we have fully briefed on it and i want to get to to the real nuts of might some nuances of my argument because it is a reflection on this issue and i think it's one of great magnitude change my thinking a little bit on how the how the analysis should go number one i think we have given you plenty of case law that indicates that in this setting and it only makes sense particularly when katherine is to be interpreted broadly was meant to expand federal jurisdiction that it only makes sense that we are the defendant we are the class action defendant there's no way around that under state law that's number one is that different from shamrock it is different from shamrock number one in in shamrock your honor the the proposition there is a narrow construction number one number two the proposition is that you had a choice in the first instance and i also think that's true under southwind where there is a choice of going in by the point and i think i believe those are the differences the evolution of time the breadth and if you read closely this aspect of when you made your choice when we made no choice we had a five thousand dollar collection at talk to has nothing expressed lamplight you or your argument is based on of just the broad congressional intent is that  closely it's clear that class actions which this could not be until the filing of the first amended complaint must be subject to it all we're asking is for saying under california law where a defendant we've given you lots of case cannot say that calf a says i think they overlook that it's clear that when they talk about a plank the class action we have briefed what that means that does not mean the word plaintive that means a plaintiff class action is in which the plaintiff is a representative of the others as opposed to the flip side the defendant class action in which there is a representative sued supposedly on behalf of other unnamed and on in federal court under all circumstances and i'm not sure in my mind june fifth adequately distinct i understand the problem your honor and i think it's a difficult  but but but i suggested that when the term defendant used used in the terminology under the state statute number one and number two when there clearly is no class action in the and when the state law says we are really a defendant in an independent action it doesn't take much in terms of construction in the end it's clear in their smoke along clearing  honor there the case was originally it would have been subject to the jurisdiction of federal courts in the initial instance as filed and that's a significant difference and i think that's true in most as anybody is there any authority has ever ever made that distinction with regard to the shamrock anybody in the country said well sure mark not i did this case means we didn't have that are not that we can find your honor i do have a slight and it is not in our briefs and i have not tendered it so it will ask if i can cite it in quite candidly it was relatively obscure and found it last night there's a texas v walker it's one forty two fed third thirteen it's not totally in point but it certainly suggests that a counter impression there's a couple of things i want to point out before i reserve and i apologize for going so fast it was removeable b even if you give any credence to the piece of paper that was fi they have no authority to do that i want to refer to  of i guess i've already done them it's interesting in their briefings that they say look this this case really hasn't changed it was even if it was commenced and i suggest that they've pretty much admitted that it was commenced as a new action with the original count of which the original cross complaint however they say well it really didn't change that could have been sustained as a class action in that regard how do you distinguish the jensen case from an individual action to a class action and the court held that it and then when it was determined that they were not the appropriate party they didn't have standing to be amended their complaint yes i mean it's difficult argument on relation back your honor we don't say they filed the so called representative action is a knowledge and it was posted sixty four it isn't like the cases that they cite where a representative action was filed under seventeen two hundred then prop class action fundamentally different from any individual action all that that original cross complaint could possibly be an individual action at that point in time february sevent cases on that your honor it is the commencement of a class action which is totally different in nature as we've given you case law and then the individual action the invocation of relation back i would still respectfully suggest really only appropriate when you have a statute of limitations problem there's going to be a forfeiture and we have cited a case that actually contains that type of analysis as the cases under catholic seem to be using relation back but as the evolution of the thought process has gone on under katha that may or may not be the proper jumping off point because you can't expand or contract federal we have we don't have to take it back to preserve it anything if we take it back on your relation back and say it's not a totally different breed of cat which clearly a class action is and that the class action is clearly a different breed of cat then the old representative action that could have been done under seven thousand two hundred that couldn't be done any more that the nature of the protections the elements the allegations the proof are entirely emphasize that something we didn't get quite so hard which is that the first representative action is in essence a melody you couldn't do that i'm over my time interesting issues in this case is the date the cross complaint was filed with was february seventeenth two thousand and five that was the day before the class act in remanding to state court shamrock oil is the united states supreme court case and i'm not aware of any case that has a mock oil and in fact i  even if we limit it to the unfair business practices cause of action paragraph thirty three of the original cross complaint and paragraph sixty six of the american complaint are identical word for word and those paragraph conceded that under those remedies the claim would be worth five million dollars there is there is no there really is no dispute that the amount of controversy i saw in the cross complaint would have exceeded seventy five thousand dollars only if you aggregate there's nothing here that indicates that each and every member of the general public that may be part of this claim exceeds seventy five thousand that's correct well kaplan hasn't kicked in yet so  there's a problem here i think with regard to saying for sure they could have removed they can remove it sounds like only if you can have aggregation well no because there are other elements that were stock un practice fact which included attorney fees included injunctive relief which i know is not a monetary but there  and they chose to litigate those issues in state court and the state courts have ruled upon those but those were the allegations that were framed by the cross complaint with the cross complaint was filed and instead of seeking removal to the federal court at that included individual claims to mr pickard of that would have would have exceeded the jurisdiction of the federal court well i'm looking i'm looking i think it what is satisfied i can't i can't point to a specific number and the only thing i can problem is because the federal court is supposed to be restrictive on removal unless the jurisdictional amount of requirements satisfied what the federal district courts they get out of here date the use for purposes of determining their five year statute to go to trial we always look at the initial pleading and the fact that later on the specific allegations of the class action is no doubt the men across the point and i'll concede is much more detailed in the class allegations than the original cross complaint but but the original cross complaint the date of commencement of the cross complaint was in fact february seventeenth two thousand but if that removal was possible not when the complaint was initially filed well i it's our contention that it was originally removable based upon the date of commencement we actually accept that we're looking at this pleading you still haven't told me anything that satisfies the seventy five thousand federal question requirement let alone the five million requirement for aggregation so what is it that makes this particular document removable well i believe that that the activation does apply in paragraph no numbers here there's no money there's nothing the federal court can look at to determine that based on this pleadings that the allegations of the many cross complaint are identical in paragraph sixty six of the amended cross complaint and paragraph thirty three of this cross complaint the remedy sought are identical so the amended cross complaint is in fact removable and in the american plane we don't have a five million dollar allegation we just have the same exact paragraphs alleging the same exact remedies that were contain have not changed in over century and the fact that the that there is that there are certainly removal of the croc complaint is an issue in which you know the became the defendant for practical purposes made the election to go into state court because it couldn't satisfy the jurisdictional amount in federal court and opted not to go there and it is argued that's not the case here and with a five thousand dollar complaint under today's statute that seems to be true now he couldn't cite any authority in support of that proposition i don't know of course you talked about it one way or the other but can you identify any authority that speaks to the opposite urge the question that's been sitting out there the nobody's considered before  i think that that shamrock oil clearly clearly says defendants and it's not distinguish between crock claims but it clearly talks about defendants but to answer your question specifically we have not found any any cases that have addressed this issue but that's before that's raised by word the original complaint but i have not seen any case that addressed that issue and distinguishes shamrock in that way individually and then converting it to a class action post katha gives jurisdiction the plumber case is well reasoned in the suggest it can be followed there is other authority there are on that  the reason the case is not good it's counter intuitive and it makes no sense i want to go back to the amount of controversy there was no reason to even go through the aggregation on the first cross complaint that is analogous to a representative action he had no authority to do that he compounded it and put it in his second he's amended and then as the temerity to say well look it's the same that paragraph sixty five in the new cross complaint is a no this man has no authority to be a private attorney general and so on behalf of the general public period so we don't even have to go into that analysis but again there was nothing on the face of the complaint that and thank you for your patience also for the argument on ice face it does appear to be a case of first impression in some respect the last case in this morning's kalar will take a very brief recess to leave the bench and let the lawyers  exit and then we'll come right back and speak to the students for a few minutes so we'll see you in a couple of minutes for this morning we are ver