Gonzalez v. County of Fresno

Opinion

3 6 7 VERONICA ORDAZ GONZALEZ, et al., Case No. 1:18-cv-01558-BAM

8 Plaintiffs, ORDER DENYING PLAINTIFFS’ MOTION TO CERTIFY THE COURT’S 9 v. ORDER DENYING PLAINTIFFS’ MOTION TO AMEND COMPLAINT 10 COUNTY OF FRESNO, et al., (Doc. No. 53) 11 Defendants.

13 Currently before the Court is Plaintiffs Veronica Ordaz Gonzalez, Jose Ramos Santiago, 14 Omar Perez, and Roberto Perez’ (“Plaintiffs”) Motion to Certify the Court’s Order Denying 15 Plaintiffs’ Motion to Amend Complaint. (Doc. No. 53.)1 On June 12, 2020, Defendant County of 16 Fresno (“Defendant”) filed an opposition to the motion. (Doc. No. 55.) Plaintiffs replied on June 17 19, 2020. (Doc. No. 58.) 18 The Court finds the matter suitable for decision without the need for oral argument pursuant 19 to Local Rule 230(g) and VACATES the hearing set for June 26, 2020. Having considered the 20 motion, the opposition, and the reply, as well as the entire record in this case, Plaintiffs’ motion is 23 This case was removed from the Superior Court of California for the County of Fresno on 24 November 10, 2018. (Doc. No. 1.) Plaintiffs’ complaint arises out of a search of Plaintiff Veronica 25 Ordaz Gonzalez’ home by sheriff deputies, during which Plaintiffs’ dog was shot. (See id.) In 26

27 1 The parties have consented to the jurisdiction of the United States Magistrate Judge. (Doc. Nos. 5, 41, 43.) For that reason, the action was reassigned to the Honorable Barbara A. McAuliffe for all purposes. See 28 U.S.C.§ 1 addition to setting forth claims against Defendant, the complaint names “Officer Doe 1” and 2 “Does 2-25, inclusive” as defendants. (Id.) 3 On February 12, 2019, the Court issued a Scheduling Order which, in relevant part, set a 4 deadline of April 12, 2019, for any stipulated amendments or motions to amend the pleadings. 5 (Doc. No. 9.) On January 3, 2020, Plaintiffs filed a motion seeking leave to file an amended 6 complaint. (Doc. No. 17.) According to the motion, Plaintiffs sought to amend the complaint in 7 order to name Deputy Courtney Bush as Officer Doe 1 and to name Deputy Jeffrey Morse, Deputy 8 Santos, Sergeant Dunn, and Deputy Isaac Cervantes as Does 2 through 5, respectively. (Id.) The 9 Court issued an order dated May 19, 2020, denying Plaintiffs’ motion to amend. (Doc. No. 53.) 10 On May 28, 2020, Plaintiffs filed the instant motion seeking to certify the Court’s May 19, 2020 11 order denying leave to amend for an interlocutory appeal. (Doc. No. 53.) Generally, the United States Courts of Appeals have jurisdiction over appeals from “final 13 decisions of the district courts.” See 28 U.S.C. § 1291. Congress created an exception to that final- 14 judgment rule, however, in 28 U.S.C. § 1292(b). Section 1292(b) states: 15 (b) When a district judge, in making in a civil action an order not 16 otherwise appealable under this section, shall be of the opinion that 17 such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an 18 immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in 19 such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit 20 an appeal to be taken from such order, if application is made to it 21 within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the 22 district court unless the district judge or the Court of Appeals or a judge thereof shall so order. 23 24 Accordingly, a non-final order may be certified for interlocutory appeal where it involves: 25 1) a controlling question of law; 2) as to which there is substantial ground for difference of 26 opinion; and 3) where an immediate appeal may materially advance the ultimate termination of the 27 litigation. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 687–88 (9th Cir. 2011). The party 1 Cnty. of Los Angeles, 630 F.Supp. 228, 229 (C.D. Cal. 1986); see also Kight v. Eskanos & Adler, 2 P.C., 2007 WL 173825, at *2 (S.D. Cal. Jan. 8, 2007) (“All three requirements must be met for 3 certification to issue.”). Moreover, “[t]he decision to certify an order for interlocutory appeal is 4 committed to the sound discretion of the district court.” United States v. Tenet Healthcare 5 Corp., 2004 WL 3030121, at *1 (C.D. Cal. Dec. 27, 2004) (citing Swint v. Chambers County 6 Comm'n, 514 U.S. 35, 47 (1995)). 7 As the Ninth Circuit has explained, section 1292(b) “is to be applied sparingly and only in 8 exceptional cases[.]” United States v. Woodbury, 263 F.2d 784, 788 n. 11 (9th Cir. 1959) (citations 9 omitted). This is consistent with the legislative history of section 1292(b), which supports caution 10 in its application. See id. (“[I]n passing this legislation Congress did not intend that the courts 11 abandon the final judgment doctrine and embrace the principle of piecemeal appeals.”) (internal 12 quotation marks and citation omitted). Because “[s]ection 1292(b) is a departure from the normal rule that only final judgments are appealable,” it “must be construed narrowly.” James v. 13 Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n. 6 (9th Cir. 2002). Certification under section 14 1292(b) “is intended to be ‘used only in exceptional situations in which allowing an interlocutory 15 appeal would avoid protracted and expensive litigation.’” Kight, 2007 WL 173825, at *1 (quoting 16 In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1982). “‘It is not 17 thought that district judges would grant the certificate in ordinary litigation which could otherwise 18 be promptly disposed of or that mere question[s] as to the correctness of the ruling would prompt 19 the granting of the certificate.’” Loritz v. CMT Blues, 271 F.Supp.2d 1252, 1254 (S.D. Cal. 2003) 20 (quoting Woodbury, 263 F.2d at 785 n. 2). Stated differently, section 1292(b) was not intended 21 “‘merely to provide review of difficult rulings in hard cases. ” Environmental Protection 22 Information Center v. Pacific Lumber Co., 2004 WL 838160, at *2 (N.D. Cal. Apr. 19, 2004) 23 (quoting United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966)). Consequently, 24 only “[i]n rare circumstances” may a district court “allow an immediate appeal of an interlocutory 25 order.” Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, 26 Inc., 2007 WL 1119193, at *2 (N.D. Cal. Apr. 16, 2007) (citing James, 283 F.3d at 1068, n. 6). 27 With these standards firmly in mind, the Court considers whether Plaintiffs have met each 1 of the three elements necessary for section 1292(b) certification. 3 Plaintiffs contend that all three elements to certify the Court’s order denying leave to 4 amend for an interlocutory appeal have been met. (Doc. No. 53-1.) Defendant focuses solely on 5 the second element for certification, arguing that Plaintiffs have failed to establish that there is a 6 substantial ground for difference of opinion. (Doc. No. 54.) For the following reasons, the Court 7 finds Plaintiffs have failed to sustain their burden of establishing that certification is appropriate. 8 A. Controlling Question of Law 9 First, Plaintiffs must show that the Court’s order denying leave to amend involves a 10 controlling question of law. See 28 U.S.C. § 1292(b). A question is controlling if “resolution of the 11 issue on appeal could materially affect the outcome of the litigation in the district court.” In re 12 Cement Antitrust Litig., 673 F.2d at 1026. Plaintiffs’ motion does not clearly identify the question they seek to certify for interlocutory 13 appeal. (See Doc. No. 53.) However, on reply, Plaintiffs explain that their “request to certify is 14 based on the confused and, in Plaintiffs’ belief, incorrect interpretation by district courts of Ninth 15 Circuit cases to mean that district courts have no authority or discretion to consider Rule 15 16 factors when ruling on a motion to amend brought after the deadline for amendments to the 17 pleadings have passed in the local court’s scheduling order.” (Doc. No. 58 at 3.) 18 However, this is not a controlling question of law that would materially affect the outcome 19 of the case. Nothing in the Court’s order denying leave to amend suggested that it lacked 20 discretion to consider Rule 15. The Court did not, as Plaintiffs contend, find that it “cannot 21 consider Rule 15’s ‘interest of justice’ and prejudice elements” in ruling on Plaintiffs’ motion. 22 (See Doc. No. 53-1 at 2.) (emphasis in original.) Instead, the Court simply exercised its discretion 23 and declined to address Rule 15 in light of the Court’s finding that Plaintiffs had not satisfied Rule 24 16 in that they had not been diligent in seeking amendment. (See Doc. No. 52 at 2, 5.) 25 While Plaintiffs argue that the Court’s order denying leave to amend involves a controlling 26 question of law because “[t]he inclusion of new defendants necessarily materially affects the 27 outcome” in this case where “the current defendants’ potential liability is not vicarious as to all 1 causes of action[,]” Plaintiffs also make clear in their reply that they do not challenge whether or 2 not the Court’s Rule 16 determination was correct. (Doc. Nos. 53-1 at 4, 58 at 2.) An appeal 3 therefore would not reach the question of whether leave to amend should be granted and these new 4 defendants should be brought into the case. Instead, any appeal would be limited to the Court’s 5 discretion to consider Rule 15 despite Plaintiffs’ failure to satisfy Rule 16. Additionally, a ruling 6 on appeal that the Court had discretion to consider Rule 15 would have no impact on the outcome 7 of the case because such a ruling would be entirely consistent with the Court’s order, which 8 simply declined to exercise discretion to consider Rule 15. Accordingly, Plaintiffs have failed to 9 satisfy the first element for certification of an interlocutory appeal. 10 B. Substantial Ground for Difference of Opinion 11 The second requirement under section 1292(b) is that there is a “substantial ground for 12 difference of opinion” on the issue the moving party seeks to certify for interlocutory appeal. “A party's strong disagreement with the Court's ruling” is not enough. Couch v. Telescope, Inc., 611 13 F.3d 629, 633 (9th Cir. 2010). “That settled law might be applied differently does not establish a 14 substantial ground for difference of opinion.” Id. Rather, “courts must examine to what extent the 15 controlling law is unclear.” Id. A substantial ground for difference of opinion exists where “the 16 circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the 17 point, if complicated questions arise under foreign law, or if novel and difficult questions of first 18 impression are presented.” Id. (quotations and citation omitted). 19 Plaintiffs’ argument regarding the second element of certification is premised on the 20 incorrect assumption that the Court “belie[ved] that it did not have any discretion to consider the 21 interests of justice in its ruling[.]” (Doc. No. 53-1 at 2.) While Plaintiffs repeatedly assert in their 22 motion that the Court found it did not have discretion to consider Rule 15, Plaintiffs do not explain 23 the basis for this assumption and there is nothing in the Court’s order supporting such an 24 interpretation. As discussed above, the Court instead declined to exercise its discretion to address 25 Rule 15 because Plaintiffs had failed to establish good cause for waiting nearly nine months after 26 the expiration of the amendment deadline to bring their motion. (See Doc. No. 52 at 2, 5.) The 27 Court was well within its discretion to do so. 1 Plaintiffs refer to a “Ninth Circuit conflict” regarding the interplay of Rules 15 and 16 and 2 a “pervasive” idea in the Eastern District that courts have no discretion to consider Rule 15 when 3 ruling on an untimely motion to amend. (Doc. Nos. 53-1 at 5, 58 at 3.). However, Plaintiffs only 4 cite to a single district court case, Pacific Coast Fed’n of Fishermen’s Ass’ns v. Murillo, 2017 WL 5 11166145 (E.D. Cal. Mar. 28, 2017) in support of this alleged Ninth Circuit conflict and 6 “pervasive” misconstruction of applicable law within the Eastern District. (See Doc. No. 53-1 at 7 5.) As an initial matter, nothing in Murillo found, as Plaintiffs contend, that district courts cannot 8 consider Rule 15 in the context of a motion to amend filed after the applicable amendment 9 deadline. To the contrary, the court in Murillo recognized that it was not required to consider Rule 10 15 where Rule 16 had not been met and accordingly exercised its discretion not to do so. See 11 Murillo, 2017 WL 11166145, at *5 (“Because plaintiffs have failed to show good cause to amend 12 the complaint, the court need not proceed to consider the Rule 15 factors.”) (emphasis added). Plaintiffs have additionally failed to cite any authority for the proposition that a single district 13 court case is “pervasive” and amounts to a “Ninth Circuit conflict.” 14 Despite Plaintiffs’ contentions, there is no “conflict within the Ninth Circuit” regarding the 15 Court’s discretion to decline to consider Rule 15 where a motion is filed after the amendment 16 deadline has lapsed and the plaintiff has failed to establish good cause. (See Doc. No. 53-1 at 5, 6.) 17 Ninth Circuit law is well settled on this point. For example, the Ninth Circuit in Johnson v. 18 Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) did not engage in a Rule 15 19 analysis where a motion to amend was untimely and Rule 16 had not been satisfied. As the Court 20 explained, “Rule 15 does not provide the standards by which we consider [plaintiff’s] motion to 21 amend . . .. Once the district court had filed a pretrial scheduling order pursuant to Federal Rule of 22 Civil Procedure 16 which established a timetable for amending pleadings that rule's standards 23 controlled.” Plaintiffs argue that Johnson “acknowledged that a ‘manifest injustice’ justifies 24 amendment even after the pretrial conference[.]” (Doc. No. 53-1 at 5.) However, citing to Rule 25 16(e), Johnson expressly stated the “manifest injustice” standard applied to modifications of a 26 final pretrial order. Johnson, 975 F.2d at 608; see also Fed. R. Civ. P. 16(e). Nothing in Johnson 27 obviates the good cause standard where a plaintiff files a motion to amend after the deadline for 1 amendment has lapsed. Instead, Johnson recognizes that in those situations a court may decline to 2 consider Rule 15 where Rule 16 has not been met. 3 Likewise, United States v. Dang, 488 F.3d 1135 (9th Cir. 2007) cited Johnson for the 4 proposition that the plaintiff was required to demonstrate good cause for modifying the scheduling 5 order where it sought to amend the complaint well after the scheduling order was issued. Dang, 6 488 F.3d at 1142. The Dang court further acknowledged the district court’s “broad discretion in 7 supervising the pretrial phase of litigation, and its decisions regarding the preclusive effect of a 8 pretrial order” and noted that the district court could have denied the plaintiff’s untimely motion to 9 amend for lack of good cause. Id. at 1142-1143. The Court’s order denying Plaintiffs leave to 10 amend in this case was not inconsistent with Dang as Plaintiffs contend because, as the Ninth 11 Circuit acknowledged in Dang, it was within the Court’s discretion to deny a motion for leave to 12 amend filed after the applicable amendment deadline where Plaintiffs failed to establish good cause. Nothing in Dang requires the Court to consider the application of Rule 15 “in conjunction 13 with Rule 16” as Plaintiffs contend. (See Doc. No. 53-1 at 2.)2 14 On reply, Plaintiffs cite to Coleman v. Quaker Oats, 232 F.3d 1271, 1295 (9th Cir. 2000), 15 in which the Ninth Circuit noted that the defendant would be prejudiced by a motion to amend 16 filed after the applicable amendment deadline. (Doc. No. 58 at 3.) The court in Coleman found 17 that prejudice to the defendant “supplie[d] an additional reason for denying the motion” but 18 specifically noted that prejudice was “not required under Rule 16(b)[.]” Coleman, 232 F.3d at 19 1295. Further, the Coleman court recognized that because the plaintiffs failed to show diligence, 20 “the inquiry should end.” Id. (citing Johnson, 975 F.2d at 609.) Coleman, like Johnson and Dang, 21 supports the proposition that a court may properly decline to consider Rule 15 where a motion to 22 amend is untimely and Rule 16 has not been met. The Court in this case exercised its discretion 23 consistent with these authorities. Although, as in Coleman, there may have been additional reasons 24 under Rule 15 to deny Plaintiffs leave to amend, the Court was not required to discuss them and 25 26 2 Plaintiffs further argue that nothing in Johnson overruled, or even considered, Dang in its opinion. (Doc. 27 No. 53-1 at 2, 5.) However, Johnson was decided approximately fifteen years before Dang. On reply, Plaintiffs acknowledge that the citation to Johnson as having been decided in 2015 was a clerical error. (Doc. No. 58 at 2.) 1 was instead permitted to end the inquiry at Plaintiffs’ failure to show diligence. 2 Plaintiffs further attempt to reargue the motion for leave to amend in their discussion of the 3 second element for certification. (Doc. No. 53-1 at 5-6.)3 Plaintiffs contend that “it would have 4 been improper to name every name on the Initial Disclosures” and the Central District has 5 permitted amendment where a plaintiff waited fifty days to file a motion to amend and there were 6 intervening holidays. (Id.) At best, this is merely an argument that the Court misapplied the 7 existing law to the facts, which is clearly insufficient to show a “substantial ground for difference 8 of opinion.” Stiner v. Brookdale Senior Living, Inc., 383 F.Supp.3d 949, 958 (N.D. Cal. 2019) 9 (citing Couch, 611 F.3d at 633). Moreover, a motion for certification under section 1292(b) is not 10 an opportunity for Plaintiffs to debate the merits of the underlying motion for leave to amend or to 11 present arguments that could have been, but were not, previously raised.4 While Plaintiffs may 12 disagree with the Court’s ruling, their opinions of the Court’s findings are insufficient to certify an issue for interlocutory appeal. Hansen v. Schubert, 459 F. Supp. 2d 973, 1000 (E.D. Cal. 2006); 13 see also First Am. Corp. v. Al–Nahyan, 948 F.Supp. 1107, 1116 (D. D.C. 1996) (“Mere 14 disagreement, even if vehement, with a court's ruling on a motion to dismiss does not establish a 15 ‘substantial ground for difference of opinion’ sufficient to satisfy the statutory requirements for an 16 interlocutory appeal.”). 17 While other circuits may apply the law differently, the Ninth Circuit authority on this point 18 is certain. Furthermore, there is no complicated question arising under foreign law or novel and 19 difficult questions of first impression presented by Plaintiffs’ motion for leave to amend. 20 21

22 3 Plaintiffs also cite to “the current state of the Eastern District wherein a lack of trial dates renders any prejudice due to ‘late’ scheduling order amendments in theory, only[.]” (Doc. No. 53-1.) While this argument has 23 no bearing on the elements for certification for interlocutory appeal, Plaintiffs are nonetheless directed to the Standing Order issued by District Judge Dale A. Drozd, which addresses consent to magistrate judge jurisdiction 24 and states, in relevant part, “trial dates in civil cases can be set before the assigned magistrate judge with a strong likelihood that the trial will commence on the date scheduled.” (Doc. No. 31 at 4.) While the Court previously set 25 a Status Conference and directed the parties to select proposed dates for pretrial conference and trial, the parties declined to do so, and further scheduling was instead deferred in light of this motion and Defendant’s pending motion for summary judgment. (Doc. Nos. 46, 51, 54.) If necessary and appropriate following resolution of these 26 motions, the Court will reset the matter and schedule a pretrial conference and trial date.

27 4 Notably, the Central District’s opinions are not binding on this Court. See Hart v. Massanari, 266 F.3d 1155, 1174 (9th Cir. 2001) (“[T]he binding authority principle applies only to appellate decisions, and not to trial 1 Accordingly, Plaintiffs have failed to demonstrate a substantial ground for difference of opinion as 2 required for certification for an interlocutory appeal. 3 C. Materially Advance the Ultimate Termination of the Litigation 4 The third element of certification for an interlocutory appeal requires Plaintiffs to show that 5 an immediate appeal will materially advance the ultimate termination of the litigation. Courts have 6 found that this element is satisfied in situations where an interlocutory appeal would resolve a 7 legal issue implicated in a large number of other cases. Medlock v. Taco Bell Corp., 2014 WL 8 6389382, at *2 (E.D. Cal. Nov. 14, 2014). Courts have also found that the factor is met when the 9 trial court denies a motion that would result in dismissal of a claim, and an appeal may save time 10 because reversal on appeal would result in the claim being dismissed, saving the parties' time and 11 expense conducting discovery and trial on that claim. Id. 12 Here, Plaintiffs seek an interlocutory appeal of an order which denied Plaintiffs leave to amend to name Doe defendants. An appeal would not materially advance the ultimate termination 13 of this litigation and reversal on appeal would, if anything, protract litigation. There would be little 14 time savings, as the same result would occur if the parties waited for final judgment in this action 15 and appealed the issue at that point. Medlock, 2014 WL 6389382, at *2. Plaintiffs argue that an 16 interlocutory appeal will materially advance the termination of the litigation “because if Plaintiffs’ 17 claims against the county are ruled on without the individual officers, Plaintiffs will be forced to 18 appeal that decision, post-trial.” (Doc. No. 53-1 at 7.) If this were sufficient to justify interlocutory 19 appeal, it would be appropriate in every case, because it will always be the case that an 20 interlocutory appeal results in a decision sooner than an appeal after final judgment. 21 The time savings associated with a consolidated single trial is not sufficient to meet the 22 “materially advanced” standard, particularly when weighed against the possibility that 23 interlocutory appeal merely wastes more time if this Court's decision is affirmed. Medlock, 2014 24 WL 6389382, at *2. Instead, certification may actually delay the progress and ultimate termination 25 of this case, particularly as Plaintiffs request a stay pending resolution of their appeal. (Doc. No. 26 53-1 at 8.) Stiner v. Brookdale Senior Living, Inc., 383 F. Supp. 3d 949, 958 (N.D. Cal. 2019) 27 (citing Shurance v. Planning Control Int'l, Inc., 839 F.2d 1347, 1348 (9th Cir. 1988)); Rieve v. 1 Coventry Health Care, Inc., 870 F.Supp.2d 856, 880 (C.D.Cal.2012) (internal quotation marks and 2 citations omitted) (“[W]here the Court concludes certification would actually delay the resolution 3 of the litigation, certification is not appropriate.”); Villarreal v. Caremark LLC, 85 F.Supp.3d 4 1063, 1072–73 (D. Ariz. 2015) (finding that the defendant’s request for a stay pending appeal 5 exacerbated the delay inherent in an interlocutory appeal). Thus, Plaintiffs have not identified a 6 substantial savings in time or cost and have only demonstrated that the same time and cost would 7 be spent earlier rather than later. Medlock, 2014 WL 6389382, at *2; Hightower v. Scwarzenegger, 8 2009 WL 3756342, at *4 (E.D. Cal. Nov. 6, 2009) (reasoning that a party “must show that an 9 immediate appeal may ‘materially advance,’ rather than impede or delay, ultimate termination of 10 the litigation”). 11 “The default policy is to postpone appellate review until after final judgment” and Plaintiffs 12 have not demonstrated any justification for a departure from the default policy. Medlock, 2014 WL 6389382, at *3. This is not the exceptional case which Congress contemplated in enacting section 13 1292(b). Instead, granting certification would contravene the principles that section 1292(b) must 14 be “construed narrowly” and “applied sparingly.” James, 283 F.3d at 1068 n. 6; Woodbury, 263 15 F.2d at 788 n. 11. Because Plaintiffs’ motion does not present a controlling issue of law as to 16 which there is substantial ground for difference of opinion and an interlocutory appeal would not 17 materially advance the termination of this litigation, the motion will be denied. 18 IV. CONCLUSION 19 For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs’ Motion to Certify 20 the Court’s Order Denying Plaintiffs’ Motion to Amend Complaint (Doc. No. 53) is DENIED. 21 IT IS SO ORDERED. 22 23 Dated: June 22, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24

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