FILED
NOT FOR PUBLICATION
MAR 14 2024
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEXANDER COTE, individually and on No. 23-15375
behalf of all others similarly situated,
D.C. No. 4:22-cv-04056-HSG
Plaintiff-Appellant,
v. MEMORANDUM*
OFFICE OF THE CALIFORNIA STATE
CONTROLLER; BETTY T. YEE, in her
official capacity as California State
Controller,
Defendants-Appellees.
JENNIFER I. SYKES, individually and on No. 23-15377
behalf of all others similarly situated,
D.C. No. 4:22-cv-04133-HSG
Plaintiff-Appellant,
v.
OFFICE OF THE CALIFORNIA STATE
CONTROLLER; BETTY T. YEE, in her
official capacity as California State
Controller,
Defendants-Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ALISON COLE-KELLY, Individually and No. 23-15413
on Behalf of All Those Similarly Situated,
D.C. No. 4:22-cv-02841-HSG
Plaintiff-Appellant,
v.
BETTY T. YEE, in her official capacity as
California State Controller; STATE OF
CALIFORNIA,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Submitted March 12, 2024**
San Francisco, California
Before: S.R. THOMAS, McKEOWN, and CHRISTEN, Circuit Judges.
Plaintiffs-Appellants Alexander Coté, Jennifer Sykes, and Alison Cole-Kelly
appeal a district court’s dismissal without leave to amend of their putative class
action against Defendent-Appellee the California State Controller. We have
jurisdiction over this appeal of the district court’s dismissal under 28 U.S.C.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
§ 1291. We affirm the judgment of the district court. Because the parties are
familiar with the factual and procedural history of the case, we need not recount it
here.
“Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed
de novo.” Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011)
(emphasis omitted). “We review for abuse of discretion a district court’s
dismissal . . . without leave to amend.” Benavidez v. County of San Diego, 993
F.3d 1134, 1141–42 (9th Cir. 2021). “A district court acts within its discretion to
deny leave to amend when amendment would be futile . . . .” V.V.V. & Sons Edible
Oils Ltd. v. Meenakshi Overseas, LLC, 946 F.3d 542, 547 (9th Cir. 2019) (ellipsis
in original) (quoting Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725–26 (9th Cir.
2000)). We review “the question of futility of amendment de novo.” United States
v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir. 2016).
Plaintiffs claim that California’s Unclaimed Property Law (UPL) violates
the Fifth and Fourteenth Amendments of the United States Constitution and
Article 1, Section 19 of the California Constitution. San Remo Hotel L.P. v. City
And County of San Francisco, 27 Cal. 4th 643, 664 (2002) (construing the
California Constitution’s takings clause “congruently” to the United States
Constitution’s Takings Clause). They argue that California’s Unclaimed Property
3
Law is unconstitutional because it does not require interest to be paid on escheated
property while held by the state nor once reclaimed. Cal. Civ. Proc. Code
§ 1540(c). Plaintiffs seek declaratory and injunctive relief to remedy this injury.
However, we have already decided this question in two cases: Turnacliff v.
Westly, 546 F.3d 1113 (9th Cir. 2008), and Suever v. Connell, 579 F.3d 1047 (9th
Cir. 2009). These cases bind us, and preclude relief. In addressing an estate
administrator’s challenge to the 2002 version of California’s Unclaimed Property
Law that guaranteed some interest, we held that “when the Estate abandoned its
property, it forfeited any right to interest earned by that property.” Turnacliff, 546
F.3d at 1119; Texaco, Inc. v. Short, 454 U.S. 516 (1982). We confirmed that
holding in Suever, where we rejected claims for retroactive interest under the same
2002 statute because “state sovereign immunity clearly precludes Plaintiffs from
successfully obtaining more than [their escheated principal and sales proceeds
therefrom] in the form of interest.” 579 F.3d at 1059. We also rejected claims for
an injunction that required the “payment of interest on any claims for unclaimed
property that escheated under” the 2003 California Unclaimed Property Law that
paid no interest. Id. at 1057. And we rejected claims for equitable relief that were
“indistinguishable in effect from claims for money damages against the State and,
as such, . . . barred by the Eleventh Amendment.” Id. at 1059–60.
4
There is no principled difference to be drawn between the statutes those
decisions considered and the one before us today. Plaintiffs’ property has validly
escheated to the state. The current statute does not guarantee interest, Cal Civ.
Proc. Code § 1540(c) (2021) (“Interest shall not be payable on any claim paid
under this chapter.”), and we addressed a nearly identical statute that did not
guarantee interest in Suever. 579 F.3d at 1057; see Cal Civ. Proc. Code § 1540(c)
(2003) (“No interest shall be payable on any claim paid under this chapter.”). As
we held in Suever: “[T]he State is not constitutionally required to pay any interest
under the UPL . . . .” 576 F.3d at 1056. The district court applied our precedents
correctly. To the extent the plaintiffs’ claims are for money damages against the
state, they are barred by the Eleventh Amendment. Id. at 1059. To the extent any
claims escape the Eleventh Amendment, plaintiffs cannot establish an entitlement
to the interest they seek. Turnacliff, 546 F.3d at 1119.
To overcome the weight of our precedent, plaintiffs cite to several out-of-
circuit cases, which do not bind this court, and several Supreme Court decisions.
A three-judge panel may overrule circuit precedent only where an “intervening
higher authority” is “clearly irreconcilable” with the reasoning of that decision.
CoreCivic, Inc. v. Candide Grp., LLC, 46 F.4th 1136, 1141 (9th Cir. 2022)
(quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)).
5
Turnacliff and Suever were decided after the cited Supreme Court cases, and
therefore the cited cases cannot constitute “intervening higher authority.” Miller,
335 F.3d at 900.1
The district court properly applied Turnacliff and Suever in dismissing the
plaintiffs’ claims as precluded by Ninth Circuit precedent.
AFFIRMED.
1
Plaintiffs also suggest the panel call for en banc review or certify their
questions to the Supreme Court. En banc review is not warranted because we are
not faced with “contradictory precedents” nor an “irreconcilable conflict” in our
case law. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1478–79 (9th
Cir. 1987). As to whether this panel should certify plaintiffs’ questions to the
Supreme Court, mere “doubts” about a Court of Appeals’ prior panel decisions are
insufficient to invoke “so exceptional a jurisdiction” as the Supreme Court’s on
certification. Wisniewski v. United States, 353 U.S. 901, 902 (1957).
6