                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 23 2015

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

COURTHOUSE NEWS SERVICE,                         No. 14-56444

              Plaintiff - Appellant,             D.C. No. 2:11-cv-08083-R-MAN

  v.
                                                 MEMORANDUM*
MICHAEL D. PLANET, in his official
capacity as Court Executive Officer/Clerk
of the Ventura County Superior Court,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                             Submitted June 23, 2015**
                               Pasadena, California

Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.

       Courthouse News Service (“CNS”) appeals the district court’s grant of

Michael Planet’s motion to dismiss. We have jurisdiction pursuant to 28 U.S.C.


        *
             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).
§ 1291. Reviewing de novo, we reverse and remand with instructions. ASARCO,

LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014).

      The district court previously granted a motion to abstain from hearing this

case, which we reversed and remanded in a published opinion. Courthouse News

Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014). We held, inter alia, that the district

court lacked the discretion to abstain under Railroad Commission of Texas v.

Pullman Co., 312 U.S. 496 (1941), because of the important First Amendment

interest at stake. Courthouse News, 750 F.3d at 789. In so holding, we noted that

“there [was] no question that CNS . . . alleged a cognizable injury caused by the

Ventura County Superior Court’s denial of timely access to newly filed

complaints,” id. at 788, which, according to CNS’s complaint, include delays

“stretching up to 34 calendar days.” CNS’s complaint also alleged that many

courthouses across the country have adopted procedures to facilitate same-day

media access to civil complaints. For purposes of a motion to dismiss, all factual

allegations in the complaint are taken as true. Webb v. Smart Document Solutions,

LLC, 499 F.3d 1078, 1082 (9th Cir. 2007); see also Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). The district court misapplied this standard governing Rule

12(b)(6) motions when it granted Planet’s motion to dismiss CNS’s amended




                                          2
complaint for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6).

      In our prior opinion, we emphasized that “access to public proceedings and

records is an indispensable predicate to free expression about the workings of

government.” Courthouse News, 750 F.3d at 785. We explained that the federal

courts of appeals have widely agreed that this important First Amendment right of

access “extends to civil proceedings and associated records and documents.” Id. at

786. At the same time, we noted that this “right of access may be overcome by an

‘overriding [governmental] interest based on findings that closure is essential to

preserve higher values.’” Id. at 793 n.9 (quoting Leigh v. Salazar, 677 F.3d 892,

898 (9th Cir. 2012)). We also acknowledged that “[t]he delay in making the

complaints available may also be analogous to a permissible ‘reasonable

restriction[ ] on the time, place, or manner of protected speech.’” Id. (quoting Ward

v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

      On remand, the district court narrowed the legal question to same-day access

as an abstract notion and held, as a matter of law, that the First Amendment right of

access does not mandate same-day access to civil complaints. The district court

erred by evaluating the question of same-day access as a purely legal question

divorced from the legal framework discussed in our prior opinion, and from the

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allegations in CNS’s complaint which allege delays in access to civil complaints

exceeding 33 days from filing. While the district court cited the correct Supreme

Court precedent, it failed to conduct the proper analysis dictated by that precedent.

The district court acknowledged “that a constitutional right to access to civil

complaints could arise under the Press-Enterprise test at some point during the

course of civil proceedings,” yet failed to determine whether the delays alleged in

CNS’s complaint, which must be taken as true at this stage of the proceeding,

implicated such a right. Thus, the district court disregarded our mandate by

erroneously ruling as a matter of law that filed civil complaints which have not yet

been the subject of a hearing are outside the scope of the First Amendment right of

access.

      We again reverse and remand this case so that the district court may properly

evaluate the merits of CNS’s claims, consistent with our prior opinion. On

remand, we grant CNS’s request that the Clerk of the Court for the Central District

of California assign this case to a different district court judge upon remand.

Although we do not find personal bias, “unusual circumstances” warrant

reassignment here. Ellis v. U.S. Dist. Court (In re Ellis), 356 F.3d 1198, 1211 (9th

Cir. 2004) (en banc). We consider: “(1) whether the original judge would

reasonably be expected upon remand to have substantial difficulty in putting out of

                                          4
his or her mind previously expressed views or findings determined to be erroneous

or based on evidence that must be rejected, (2) whether reassignment is advisable

to preserve the appearance of justice, and (3) whether reassignment would entail

waste and duplication out of proportion to any gain in preserving the appearance of

fairness.” Id. (internal quotation marks omitted). A finding of either of the first

two factors is enough to support reassignment. United States v. Quach, 302 F.3d

1096, 1103 (9th Cir. 2002).

      Here, the appearance of justice is served by assigning this matter to a

different judge on remand because the district court judge has expressed strong

views, inconsistent with our prior opinion, on the merits of this case, failed to

conduct the proper fact-specific inquiry, and dismissed this case before an answer

was filed twice. Assignment to a different district court judge will preserve the

appearance of justice. See Ellis, 356 F.3d at 1211. Moreover, because the case has

remained at a preliminary stage for three years, no disproportionate waste and

duplication of district court resources will result from the reassignment. See id.

Therefore, on remand, the Clerk of the Court shall reassigned this case to a

different district court judge within the Central District of California.

      REVERSED and REMANDED with instructions to the Clerk to assign

to a different district court judge.

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