                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 29 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SHILOH HEAVENLY QUINE, FKA                       No.   17-16148
Rodney James Quine,
                                                 D.C. No. 3:14-cv-02726-JST
              Plaintiff-Appellee,

 and                                             MEMORANDUM*

MICHAEL HERNANDEZ CONTRERAS;
et al.,

              Intervenor-Plaintiffs,

 v.

SCOTT KERNAN, Secretary of California
Department of Corrections and
Rehabilitation; et al.,

              Defendants-Appellants.



SHILOH HEAVENLY QUINE, FKA                       No.   17-16212
Rodney James Quine,
                                                 D.C. No. 3:14-cv-02726-JST
              Plaintiff-Appellant,

 and


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
MICHAEL HERNANDEZ CONTRERAS;
et al.,

             Intervenor-Plaintiffs,

 v.

SCOTT KERNAN, Secretary of California
Department of Corrections and
Rehabilitation; et al.,

             Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                     Jon S. Tigar, District Judge, Presiding

                       Argued and Submitted June 13, 2018
                            San Francisco, California

Before: MURPHY,** PAEZ, and IKUTA, Circuit Judges.

      The California Department of Corrections and Rehabilitation (CDCR)

appeals a district court order enforcing a settlement agreement between CDCR and

plaintiff Shiloh Quine. We have jurisdiction under 28 U.S.C. § 1292(a)(1).

      The district court erred in concluding that CDCR breached its obligations

under Section 1(G) of the settlement agreement, which states:



      **
            The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
                                         2
             CDCR shall review and revise its policies to allow
             inmates identified by medical or CDCR personnel as
             transgender or having symptoms of gender dysphoria
             [referred to hereafter as “Identified Inmates”] access to
             property items available to CDCR inmates consistent
             with those inmates’ custody and classification factors,
             including property items that are designated as available
             to a specific gender only. Before those policies are final,
             Plaintiff shall have the opportunity to comment on its
             specific language, including provisions that limit certain
             property because of safety and security concerns.

      CDCR fully complied with the requirements in Section 1(G) to review and

revise its policies. CDCR reviewed and revised its regulations to allow Identified

Inmates to “possess the state-issued clothing that corresponds to their gender

identities in place of the state-issued clothing that corresponds to their assigned sex

at birth at designated institutions,” Cal. Code Regs. tit. 15, § 3030(c), as well as

creating the “Transgender Inmates Authorized Personal Property Schedule”

(TIAPPS), a property schedule for Identified Inmates that significantly expanded

the list of available items. Id. § 3190(d). CDCR also fully complied with the

requirement to give Quine “the opportunity to comment” on the regulation and

TIAPPS’ specific language before they were finalized; CDCR then revised its

policies in response to these comments.

      The district court erred in concluding that even after CDCR’s policies were

final, Quine could raise arguments that the list of property items in TIAPPS was


                                           3
unsatisfactory. The settlement agreement states that CDCR would provide access

“to property items available to CDCR inmates,” but did not otherwise specify

which property items would be included, other than that the list would include

“items available to CDCR inmates consistent with those inmates’ custody and

classification factors.” Nor did the settlement agreement state that Quine could

raise a dispute with respect to items not included on the list. Therefore, Quine’s

argument that the list of property items in TIAPPS is unsatisfactory is not a dispute

between the parties concerning the Agreement.

      The district court’s conclusion that it could consider extrinsic evidence to

alter the settlement agreement is erroneous. We review de novo whether a written

contract is reasonably susceptible of a proffered meaning. In re Bennett, 298 F.3d

1059, 1064 (9th Cir. 2002); Winet v. Price, 4 Cal. App. 4th 1159, 1165 (1992).

Because the district court relied solely on the undisputed transcript of a settlement

conference and did not make any credibility determinations or fact finding, we

likewise review the district court’s evaluation of the extrinsic evidence de novo.

See Winet, 4 Cal. App. 4th at 1166 (“[W]hen the competent parol evidence is not

conflicting, construction of the instrument is a question of law, and the appellate

court will independently construe the writing.”); see also L.K. Comstock & Co.,

Inc. v. United Eng’rs & Constructors Inc., 880 F.2d 219, 221 (9th Cir. 1989)


                                           4
(explaining that, although an appellate court must defer to a trial court’s “findings

of fact,” the “principles of contract law applied to those facts are reviewed de

novo”); In re U.S. Fin. Sec. Litig., 729 F.2d 628, 632 (9th Cir. 1984) (“When the

interpretation includes a review of factual circumstances surrounding the contract,

the principles of contract interpretation applied to those facts present issues of law

which this court can freely review.”). Reviewed de novo, the language in the

settlement agreement giving Quine “the opportunity to comment” on the revised

property policy before it was final is not reasonably susceptible of an interpretation

that Quine “could dispute the exclusion of particular property items from CDCR’s

policy,” as deficient under the Equal Protection Clause, or argue that CDCR’s

revision of its policies was otherwise defective. Cf. Dore v. Arnold Worldwide,

Inc., 39 Cal. 4th 384, 391 (2006). Any statement made by CDCR’s counsel before

the settlement agreement was executed constituted at most a different agreement

that cannot be admitted to contradict the integrated settlement agreement. See

Casa Herrera, Inc. v. Beydoun, 32 Cal. 4th 336, 344 (2004). Therefore, we reverse

the district court’s order requiring CDCR to incorporate certain items into the

TIAPPS.

      Finally, even if Quine could bring an equal protection claim after entering

into a settlement agreement that released all such claims, Quine would lack


                                           5
standing to contest the exclusion of particular items from TIAPPS under the Equal

Protection Clause. Quine is housed in a female institution and has access to all of

the items that are denied to inmates housed in male institutions. Therefore,

CDCR’s policies do not inflict a concrete or particularized injury on Quine. See

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547–48 (2016). Because Quine lacks

standing to raise an equal protection claim, we need not reach the parties’

arguments regarding the appropriate standard of scrutiny for evaluating such

claims.

      The district court also erred in holding that CDCR breached the settlement

agreement by not providing state-issued compression tops and binders to Identified

Inmates at state expense. Compression tops and binders are not “property items

available to CDCR inmates . . . that are designated as available to a specific gender

only.” Rather, the list of state-issued property and Authorized Personal Property

Schedules (APPS) for male and female inmates do not include any compression

tops or binders.1 Therefore, the failure to provide compression tops and binders at

state expense does not violate the settlement agreement.



      1
        See Cal. Code Regs. tit. 15, § 3030(b); Authorized Personal Property
Schedule, CDCR (Apr. 1, 2014), 15–16, 45–47.
https://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/
DOM/DOM%202018/APPS-Rev-4-1-14.pdf.
                                          6
      The record does not provide sufficient information to determine whether

CDCR gives all Identified Inmates “access to property items available to CDCR

inmates consistent with those inmates’ custody and classification factors” as

required by the settlement agreement, or whether CDCR limits Identified Inmates’

access to such property based on criteria that is inconsistent with the settlement

agreement. At oral argument, CDCR conceded that the evidence necessary to

decide this issue was not in the record. Therefore, we vacate the district court’s

order that CDCR revise its policy to provide access to property at non-hub

institutions, and remand for further evidentiary development.

      We affirm the district court’s conclusion that only medical or mental health

staff may identify an individual as transgender or experiencing symptoms of

gender dysphoria. The settlement agreement’s statement that Identified Inmates

must be “identified by medical or CDCR personnel” is reasonably susceptible to

the interpretation that only CDCR mental health personnel can make such

identification, the parties submitted conflicting extrinsic evidence on this point,

and the court’s conclusion that such an interpretation reflects the parties intent was

supported by substantial evidence. Winet, 4 Cal. App. 4th at 1165–66.2




      2
          Each party will bear its own costs on appeal.
                                            7
    AFFIRMED in part, VACATED and REMANDED in part, and
REVERSED in part




                              8
                                                                              FILED
Quine v. Kernan, Nos. 17-16148, 17-16212
                                                                              JUN 29 2018
Paez, J., concurring in part and dissenting in part.
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
      I agree with the majority that Quine lacks standing to bring an equal

protection claim and that the record does not provide sufficient information to

determine whether CDCR is in compliance with the settlement agreement’s access

requirement for inmates detained in non-hub facilities. I also agree with the

majority that the district court did not err when it determined that, pursuant to the

terms of the settlement agreement, only medical professionals and CDCR mental

health staff may identify transgender inmates or inmates experiencing symptoms of

gender dysphoria. Nonetheless, I dissent in part because I part ways with the

majority on two issues: first, whether the settlement agreement grants Quine the

right to challenge individual exclusions from the property list; and second, whether

the district court abused its discretion when it ordered CDCR to provide male

transgender inmates compression tops.

      As we have repeatedly recognized, California’s parol evidence rule is

unusually generous. It “permit[s] the introduction of extrinsic evidence to

demonstrate the existence of an ambiguity even when the language of a contract is

perfectly clear.” Wilson Arlington Co. v. Prudential Ins. Co. of Am., 912 F.2d 366,

370 (9th Cir. 1990). Extrinsic evidence is therefore permissible when offered to

show the meaning of a contested contractual term, so long as the term itself is
“reasonably susceptible” to the meaning advanced by the party introducing the

extrinsic evidence. Pac. Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co.,

69 Cal. 2d 33, 37 (1968) (internal quotation marks and citation omitted). In short,

extrinsic evidence is admissible to expose a latent ambiguity “even if a contract

appears unambiguous on its face.” Dore v. Arnold Worldwide, Inc., 39 Cal. 4th

384, 391 (2006) (internal quotation marks omitted).

      The majority mistakenly conflates patent and latent ambiguity, even though

the California Supreme Court has explicitly distinguished between the two. See id.

at 393 (concluding that no triable issues of fact existed because the letter at issue

“contained no ambiguity, patent or latent, in its termination provisions” (emphasis

added)); see also Alameda Cty. Flood Cent. v. Dep’t of Water Res., 213 Cal. App.

4th 1163, 1180 (2013) (“‘An ambiguity can be patent, arising from the face of the

writing, or latent, based on extrinsic evidence.’” (quoting Solis v. Kirkwood Resort

Co., 94 Cal. App. 4th 354, 360–61 (2001))). The term “opportunity to comment”

may appear unambiguous on its face, but the extrinsic evidence here reveals a

latent ambiguity that the language of the settlement agreement is reasonably

susceptible to.

         As the district court recognized, counsel for Quine expressly asked CDCR

at the settlement conference whether this specific provision granting Quine an

                                      Page 2 of 6
opportunity to comment on CDCR’s property policy also included a “process in

place for the parties to resolve any disputes with regard to items that are not being

available based on safety and security concerns.” Counsel for CDCR responded

affirmatively and further represented to the court that if there were any disputes

about the property policy, they would be brought before the court as part of the

court’s “continuing jurisdiction of execution.” The parties therefore agreed and

confirmed that the “opportunity to comment” provision of the settlement

agreement included the opportunity for Quine to dispute the exclusion of certain

items from the property policy prior to its finalization. This introduces latent

ambiguity into the meaning of “opportunity to comment.”

       The structure of the settlement agreement lends further support for Quine’s

understanding of the “opportunity to comment” provision. The next provision of

the agreement states that the district court “shall retain jurisdiction of this litigation

while this Agreement’s terms are being executed. Any disputes between the

parties concerning this Agreement shall first be presented to Magistrate Judge

Nandor J. Vadas . . . without prejudice to a party’s right to seek formal relief from

the Court.” Read together—and in the context of CDCR counsel’s representation

at the settlement hearing—the agreement clearly contemplates that Quine can

dispute the property policy in court. Critically, “opportunity to comment” is not so

                                       Page 3 of 6
rigid a term as to preclude Quine from “reasonably under[standing],” Dore, 39 Cal.

4th at 393, the term to include an opportunity to dispute.

       Furthermore, “[b]ecause a trial court’s review of extrinsic evidence is

essentially an inquiry into the intent of the contracting parties, its conclusions

based on such evidence must be accorded great weight.” In re U.S. Fin. Sec. Litig.,

729 F.2d 628, 632 (9th Cir. 1984). When, as here, “the inquiry extends beyond the

words of the contract and focuses on related facts . . . , the trial court’s

consideration of extrinsic evidence is entitled to great deference and its

interpretation of the contract will not be reversed unless it is clearly erroneous.”

Id. The district court here made a finding of fact that the parties agreed at the

settlement conference to include an opportunity to dispute the property policy in

the settlement agreement’s “opportunity to comment” provision. This finding, in

turn, guided the district court’s interpretation of the agreement. Because the

district court’s factual finding was not clearly erroneous, I would affirm the district

court’s well-reasoned conclusion that the agreement grants Quine the right to

dispute the exclusion of items from the property policy.1 Cf. Mendler v.

       1
             I nonetheless join the majority opinion in concluding that Quine lacks
standing to assert an equal protection claim, whether independently or arising from
the “opportunity to comment” provision of the settlement agreement, because
parties cannot contract for standing. See D’Lil v. Best Western Encina Lodge &
                                                                        (continued...)

                                       Page 4 of 6
Winterland Prod., Ltd., 207 F.3d 1119, 1121 (9th Cir. 2000) (“While we are wont

to defer when a district court relies on extrinsic evidence in interpreting an

ambiguous contract, the district court here made no findings of fact with regard to

the copyright claim.”).

      Nor did the district court abuse its discretion when it ordered CDCR to

provide compression tops to male transgender inmates. The settlement agreement

mandates that CDCR must revise its policies to guarantee Identified Inmates

“access to property items.” This access, however, must be equivalent. CDCR

would hardly comply with the terms of the agreement if it charged transgender

inmates—but not their cisgender counterparts—a surcharge for items like makeup

or aftershave. Accordingly, CDCR’s revised policy provides that transgender

inmates “shall be allowed to possess the state-issued clothing that corresponds to

their gender identities in place of the state-issued clothing that corresponds to their

assigned sex at birth at designated institutions.” Cal. Code Regs. tit. 15 § 3030(c)

(emphasis added).



      1
        (...continued)
Suites, 538 F.3d 1031, 1036 (9th Cir. 2008) (“As the Supreme Court has explained,
‘the question of standing is not subject to waiver.’” (quoting United States v. Hays,
515 U.S. 737, 742 (1995)). In my view, the settlement agreement preserved
Quine’s ability to bring claims pertaining to the property policy, but it did not
contemplate claims for which she lacked standing.

                                      Page 5 of 6
      The majority reads the list of state-issued property too literally. A quick

examination of state-issued clothing reveals that CDCR provides detained men and

women equivalent items. Men receive three pairs of jeans and blue chambray

shirts. See id. § 3030(b)(2). Women receive three pairs of slacks and blouses/t-

shirts. See id. § 3030(b)(3). Men receive undershorts; women receive panties. See

id. § 3030(b). Cisgender female inmates receive bras. The equivalent of bras for

transgender male inmates are compression tops. Because the state already issues

bras to female inmates (and requires them to wear them), equivalent access to

state-issued property from the property list for transgender male inmates in female

institutions reasonably means that compression tops must be state-issued as well. I

would therefore affirm the district court’s ruling on this issue.

      In my view, the majority’s narrow reading of the settlement agreement not

only fails to accord the district court’s order due deference, it denies Quine the full

value of what she negotiated for.

      For the foregoing reasons, I respectfully dissent in part from the majority’s

disposition.




                                      Page 6 of 6
