I. BACKGROUND

26 On March 2, 2023, Plaintiffs filed this action against Defendants City of San Diego, 27 County of Imperial, County of Alameda, County of Ventura, County of Los Angeles, City 28 1 of San Jose, and County of Santa Clara (collectively “Defendants”) challenging the 2 constitutionality of California Code of Civil Procedure Section 1021.11. ECF No. 1. 3 Plaintiffs sought declaratory and injunctive relief preventing Defendants from applying and 4 enforcing the statute. See id.; ECF No. 20. 5 On January 9, 2024, the Court dismissed this matter for lack of subject matter 6 jurisdiction. ECF No. 56. The Court concluded that “Plaintiffs fail[ed] to carry their burden 7 to show that they have standing.” Id. at 6. Additionally, the Court denied Plaintiffs’ motion 8 for a preliminary injunction as moot in light of the dismissal of the action. Id. at 9. 9 On February 2, 2024, Plaintiffs filed a Motion for an Injunction Pending Appeal. 10 ECF No. 61. On February 9, 2024, Defendants County of Alameda and County of Santa 11 Clara filed an Opposition (“Opposition” or “Oppo.”) to the Motion for an Injunction 12 Pending Appeal. ECF No. 64. Defendants City of San Diego, County of Imperial, County 13 of Ventura, County of Los Angeles, and City of San Jose did not file an opposition. See 14 generally Docket. On February 14, 2024, Plaintiffs filed a Reply (“Reply”) in support of 15 their Motion for an Injunction Pending Appeal. ECF No. 65. Plaintiffs request a ruling as 16 soon as possible “so that there is no impediment to the Ninth Circuit’s consideration of 17 their pending request for an injunction on the same basis.” Id. at 3. 18 II. LEGAL STANDARD 19 Federal Rule of Civil Procedure 62(d) states, “[w]hile an appeal is pending from an 20 interlocutory order or final judgment that grants, dissolves, or denies an injunction, the 21 court may suspend, modify, restore, or grant an injunction on terms for bond or other terms 22 that secure the opposing party’s rights.” Fed. R. Civ. P. 62(d). Federal Rule of Appellate 23 Procedure 8(a)(1) provides that “[a] party must ordinarily move first in the district court 24 for . . . (C) an order . . . granting an injunction while an appeal is pending.” Fed. R. App. 25 8(a)(1). 26 The standard for granting an injunction pending appeal is generally the same as the 27 standard for granting a preliminary injunction. See Nken v. Holder, 556 U.S. 418, 434 28 (2009); Humane Soc'y of U.S. v. Gutierrez, 523 F.3d 990, 991 (9th Cir. 2008). “A plaintiff 1 seeking a preliminary injunction must establish that he is likely to succeed on the merits, 2 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 3 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter 4 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Am. Trucking Ass'n, Inc. v. 5 City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). “There is substantial overlap 6 between these [factors] and the factors governing preliminary injunctions; not because the 7 two are one and the same, but because similar concerns arise whenever a court order may 8 allow or disallow anticipated action before the legality of that action has been conclusively 9 determined.” Nken, 556 U.S. at 434 (internal citation omitted). Further, “[l]ike any 10 injunction, an injunction pending appeal is ‘an extraordinary remedy that should be granted 11 sparingly.’” Sierra Forest Legacy v. Rey, 691 F. Supp. 2d 1204, 1207 (E.D. Cal. 2010). 12 III. MOTION FOR AN INJUNCTION PENDING APPEAL 13 Pursuant to Federal Rule of Civil Procedure 62(d)1, Plaintiffs request that the Court 14 “enter an injunction pending Plaintiffs’ appeal and enjoin Defendants from enforcing or 15 applying the fee-shifting penalty set forth in California Code of Civil Procedure section 16 1021.11.” ECF No. 61-1, Motion for an Injunction Pending Appeal (“Motion” or “Mot.”) 17 at 7. Plaintiffs contend that they have standing to bring this action and that the Court erred 18 in dismissing this case. See id. at 14–20. Further, Plaintiffs state that the Court should issue 19 an injunction pending appeal despite the Court’s dismissal order because Plaintiffs are 20 being irreparably harmed by Section 1021.11 the balance of equities weighs in favor of an 21 injunction. See id. at 23–26. 22 In opposition, Defendants County of Alameda and County of Santa Clara contend 23 that the Court lacks subject matter jurisdiction to grant any relief. See Oppo. at 2. In 24 addition, Defendants County of Alameda and County of Santa Clara assert that Plaintiffs 25 26

27 1 Plaintiffs cite to Rule 62(c), which became Rule 62(d) when the Federal Rules of Civil 28 1 || have not made a “clear showing” that they are entitled to injunctive relief even if the Court 2 || had jurisdiction to issue an injunction. See id. at 3. 3 In this action, the Court previously determined that Plaintiffs failed to carry their 4 ||burden to show that they have standing to pursue their claims. See ECF No. 56 at 6; see 5 Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (“A suit brought by a 6 || plaintiff without Article [II standing is not a ‘case or controversy,’ and an Article III federal 7 ||court therefore lacks subject matter jurisdiction over the suit.”). The Court noted that 8 || “Plaintiffs have failed to show that they face an actual or imminent injury.” ECF No. 56 at 9 ||6. As such, in its order dismissing the action, the Court did not reach any decision on 10 || Plaintiffs’ motion for preliminary injunction because doing so would have amounted to an 11 |}unlawful advisory opinion. See id. at 9; see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 12 ||332, 341-42 (2006) (“No principle is more fundamental to the judiciary's proper role in 13 system of government than the constitutional limitation of federal-court jurisdiction to 14 || actual cases or controversies ... and ‘Article III standing . . . enforces the Constitution's 15 ||case-or-controversy requirement.’”); Steel Co. v. Citizens for a Better Environment, 523 16 || U.S. 83, 101 (1998) (A suit brought by a plaintiff without Article II standing is not a “case 17 || or controversy,” and an Article II federal court therefore lacks subject matter jurisdiction). 18 || As the Court did not previously rule on the merits of Plaintiffs’ motion for preliminary 19 |/injunction based on a lack of subject matter jurisdiction, the Court must decline to reach 20 merits of Plaintiffs’ case. Accordingly, the Court denies Plaintiffs’ Motion for an 21 Injunction Pending Appeal. 22 ||IV. CONCLUSION 23 For the foregoing reasons, Plaintiffs’ Motion for an Injunction Pending Appeal is 24 || DENIED. 25 IT IS SO ORDERED. 26 Dated: April 8, 2024 NO 27 QF 28 Honorable Linda Lopez United States District Judge