United States v. State of California

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 16 2013

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 11-57098

Plaintiff - Appellee, D.C. No. 2:06-cv-02667-GPS-E

v.
MEMORANDUM*
STATE OF CALIFORNIA,

Defendant - Appellee,

v.

DANIEL JAMES TREBAS,

Movant - Appellant.

Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding

Submitted August 13, 2013**
San Francisco, California

Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
 Daniel James Trebas, together with other residents of the Atascadero State

Hospital (“Trebas”), moved, pro se, to intervene in a suit by the United States

against state officials responsible for California’s mental health services. The

district court denied the motion to intervene as untimely.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. We

review de novo the denial of a party’s motion to intervene as a matter of right,

except for the issue of timeliness, which we review for an abuse of discretion.

NAACP v. New York, 413 U.S. 345, 366 (1973); Cnty. of Orange v. Air California,

799 F.2d 535, 537 (9th Cir. 1986).

Federal Rule of Civil Procedure 24(a) provides that “[o]n a timely motion,

the court must permit” the intervention of an applicant who “claims an interest

relating to the property or transaction that is the subject of the action, and is so

situated that disposing of the action may as a practical matter impair or impede the

movant’s ability to protect its interest, unless existing parties adequately represent

that interest.” Fed. R. Civ. P. 24(a)(2). Although Rule 24 is construed broadly in

favor of intervenors, Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1179

(9th Cir. 2011) (en banc), the applicant bears the burden of showing that each of

the elements is met, Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006).

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 Timely filing is a “threshold requirement” for intervention as of right.

League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir.

1997) (citation omitted). Courts in the Ninth Circuit evaluate three factors to

determine the timeliness of a motion to intervene: “(1) the stage of the proceeding

at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3)

the reason for and length of the delay.” California Dep’t of Toxic Substances

Control v. Commercial Realty Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2002)

(citation and internal quotation marks omitted). The district court applied the

correct Ninth Circuit standard and did not err by failing to consider the prejudice

that the proposed intervenors would suffer if their motion were denied, a factor

considered by other circuits but not our own.

The motion to intervene was filed more than four years after the court

approved the consent judgment. The district court did not abuse its discretion in

concluding that the motion to intervene was filed at a late stage in the proceedings.

See Cnty. of Orange, 799 F.2d at 538 (concluding that a motion to intervene was

untimely where the movant waited to file until after the parties had reached an

agreement).

Nor did the district court abuse its discretion in concluding that the motion

to intervene filed just before the consent judgment regarding Atascadero was set to

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expire would prejudice the existing parties, who expended considerable efforts

investigating the alleged violations, negotiating a settlement, and implementing the

consent judgment. Id.

“A party seeking to intervene must act as soon as he knows or has reason to

know that his interests might be adversely affected by the outcome of the

litigation.” United States v. Oregon, 913 F.2d 576, 589 (9th Cir. 1990) (internal

quotation marks and citation omitted). The monitor’s inspections occurred semi-

annually from 2007 through 2011, and Trebas concedes that at least some of the

proposed intervenors have resided in Atascadero since 2007 and were aware of the

consent judgment. The district court did not abuse its discretion in concluding that

the delay in filing was not convincingly explained. See Alaniz v. Tillie Lewis

Foods, 572 F.2d 657, 659 (9th Cir. 1978) (emphasizing that proposed intervenors

should have recognized the risk that settlement decree could be to their detriment

and not waited over two years after suit was filed to intervene).

AFFIRMED.

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