1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ELENA NACARINO, Case No. 20-cv-07437-EMC
8 Plaintiff, ORDER DENYING DEFENDANT’S 9 v. MOTION TO CERTIFY ORDER FOR IMMEDIATE APPEAL 10 CHOBANI, LLC, Docket No. 64 11 Defendant.
12 13 I. INTRODUCTION 14 Currently pending before the Court is Defendant’s motion requesting that the Court amend 15 its February 4, 2022 Order to certify it for immediate appeal under 28 U.S.C. § 1292(b). Motion 16 to Certify Order For Immediate Appeal (“Mot.”); Docket No. 64. For the following reasons the 17 Court DENIES Defendant’s motion. 18 II. BACKGROUND 19 Notably, the Court’s February 4, 2022 Order denied Defendant’s motion to dismiss 20 Plaintiff’s third amended complaint. Order; Docket No. 61. In doing so, the Court denied 21 Defendant’s motion to dismiss for failure to state a claim under the UCL’s unlawful prong and for 22 failure to satisfy the heightened pleading requirements of Rule 9(b). Order at 8-13. Additionally, 23 the Court denied Defendant’s motion to dismiss Plaintiff’s claim for restitution based on failure to 24 allege an inadequate legal remedy. Id. at 13-17. Further, the Court denied Defendant’s motion to 25 dismiss Plaintiff’s request for injunctive relief on standing grounds. Id. at 17-21. 26 The portion of the Order for which Defendant seeks an immediate appeal concerns the 27 Court’s denial of its motion to dismiss Plaintiff’s request for equitable restitution based on the 1 she lacks an adequate remedy at law before securing equitable restitution for past harm under” 2 California’s Unfair Competition Law (“UCL”). Sonner v. Premier Nutrition Corp., 971 F.3d 834, 3 844 (9th Cir. 2020). The Court analyzed Sonner and declined to dismiss Plaintiff’s claim for 4 equitable restitution under the UCL and concluded that Plaintiff had sufficiently “plead[ed] that 5 there is an inadequate legal remedy” because the Court previously dismissed Plaintiff’s sole 6 damages claim “on the merits.” Order at 18. The Court acknowledged that “the analysis is less 7 clear where the legal remedy has been denied despite plaintiff’s best efforts” and noted that other 8 courts have indicated that imposing the burden iterated in Sonner at the pleading stage may be 9 premature. Id. at 16. 10 III. LEGAL STANDARD 11 For the Court to certify its opinion for interlocutory review, there must be: (i) a controlling 12 question of law; (ii) substantial grounds for difference of opinion; and (iii) a likelihood that an 13 immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. 14 § 1292(b). Generally, interlocutory review is applied “only in exceptional cases where decision of 15 an interlocutory appeal might avoid protracted and expensive litigation. It was not intended 16 merely to provide review of difficult rulings in hard cases.” U.S. Rubber Co. v. Wright, 359 F.2d 17 784, 785 (9th Cir. 1966). Certification is at the discretion of the district court. Swint v. Chambers 18 Cnty. Comm’n, 514 U.S. 35, 47 (1995). The Court concludes Defendant has failed to satisfy (i) 19 and (iii). 20 IV. DISCUSSION 21 A. Controlling Question of Law 22 The first requirement that Defendant raise a controlling question of law is satisfied if 23 “resolution of the issue on appeal could materially affect the outcome of the litigation.” In re 24 Cement Litig., 673 F.2d 1020, 1026 (9th Cir. 1982). The challenged issues need not be dispositive 25 of the entire lawsuit to be controlling. See Kuehner v. Dickinson & Co., 84 F.3d 316, 319 (9th Cir. 26 1996). Although the phrase “controlling question of law” is not further defined in the statute, 27 examples include fundamental inquiries like “who are necessary and proper parties, whether a 1 be applied.” Cement Litig., 673 F.2d at 1026 (citing United States v. Woodbury, 263 F.2d 784, 2 787 (9th Cir. 1959)). Notably, where an outcome “would not result in the wrong party prevailing, 3 but rather the calculation of any potential final judgment,” it does not rise to the level of a 4 controlling question of law materially affecting the outcome of the litigation. Zulewski v. Hershey 5 Co., Case No. 11-cv-05117-KAW, 2013 WL 1334159, at *1 (N.D. Cal. Mar. 29, 2013). 6 Here, Defendant is correct that an immediate appeal would, if successful, eliminate one 7 remedy of Plaintiff’s UCL claim (equitable restitution). However, in deciding whether discovery 8 should move forward, Magistrate Judge Tse properly noted that “[e]ven if restitution is taken off 9 the table, the UCL claim for injunctive relief is moving forward.” Discovery Order at 1; Docket 10 No. 67. Hence, irrespective of the appeal herein, this Court must still reach the question of 11 Defendant’s liability under the UCL, regardless of whether equitable restitution is available as a 12 remedy. 13 As such, the issue for which Defendant seeks an interlocutory review (the scope of 14 Sonner’s inadequate legal remedies requirement) is not a controlling question of law. See 15 Banneck v. Federal National Mortgage Association, No. 17-cv-04657- WHO, 2018 WL 5603632, 16 at *2 (N.D. Cal. Oct. 29, 2018) (holding that there was no controlling question of law because 17 movant “ignores the chance that this Court might resolve the matter at the liability phase” even if 18 statutory damages and injunctive relief were precluded on successful immediate appeal); F.T.C. v. 19 Swish Mktg., No. 09-cv-03814-RS, 2010 WL 1526483, at *2 (N.D. Cal. Apr. 14, 2010) (denying 20 certification and noting that the availability of equitable remedies is not a controlling question 21 because the “possibility for purely injunctive relief still presents a live controversy”). 22 B. Substantial Grounds for Difference of Opinion 23 A substantial ground for difference of opinion exists where “novel and difficult questions 24 of first impression are presented” on which “fair-minded jurists might reach contradictory 25 conclusions.” Reese v. BP Exploration (Ak.) Inc., 643 F.3d 681, 688 (9th Cir. 2001). As noted in 26 this Court’s Order, there is a wide variance in district courts’ approaches to applying Sonner: 27 specifically with regard to determining how and when a plaintiff must demonstrate that legal 1 substantial grounds for difference of opinion. 2 C. Material Advancement 3 The third element is that an appeal must be “likely to materially speed the termination of 4 the litigation” is related to the first requirement that there be a controlling question of law. 5 Ambrosio v. Cogent Commc’ns, Inc., No. 14-cv-02182-RS, 2016 WL 777775, at *3 (N.D. Cal. 6 Feb. 29, 2016) (quoting Villarreal v. Caremark LLC, 85 F. Supp. 3d 1063, 1071 (D. Ariz. 2015)). 7 Considering the effect of a reversal on the case, an interlocutory appeal materially advances the 8 termination of the litigation where it “promises to advance the time for trial or to shorten the time 9 required for trial.” Dukes v. Wal-Mart Stores, Inc., 01-cv-02252-CRB, 2012 WL 6115536, at *5 10 (N.D. Cal. Dec. 10, 2012) (quoting 16 Federal Practice & Procedure § 3930 at n. 39 (2d ed.)).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ELENA NACARINO, Case No. 20-cv-07437-EMC
8 Plaintiff, ORDER DENYING DEFENDANT’S 9 v. MOTION TO CERTIFY ORDER FOR IMMEDIATE APPEAL 10 CHOBANI, LLC, Docket No. 64 11 Defendant.
12 13 I. INTRODUCTION 14 Currently pending before the Court is Defendant’s motion requesting that the Court amend 15 its February 4, 2022 Order to certify it for immediate appeal under 28 U.S.C. § 1292(b). Motion 16 to Certify Order For Immediate Appeal (“Mot.”); Docket No. 64. For the following reasons the 17 Court DENIES Defendant’s motion. 18 II. BACKGROUND 19 Notably, the Court’s February 4, 2022 Order denied Defendant’s motion to dismiss 20 Plaintiff’s third amended complaint. Order; Docket No. 61. In doing so, the Court denied 21 Defendant’s motion to dismiss for failure to state a claim under the UCL’s unlawful prong and for 22 failure to satisfy the heightened pleading requirements of Rule 9(b). Order at 8-13. Additionally, 23 the Court denied Defendant’s motion to dismiss Plaintiff’s claim for restitution based on failure to 24 allege an inadequate legal remedy. Id. at 13-17. Further, the Court denied Defendant’s motion to 25 dismiss Plaintiff’s request for injunctive relief on standing grounds. Id. at 17-21. 26 The portion of the Order for which Defendant seeks an immediate appeal concerns the 27 Court’s denial of its motion to dismiss Plaintiff’s request for equitable restitution based on the 1 she lacks an adequate remedy at law before securing equitable restitution for past harm under” 2 California’s Unfair Competition Law (“UCL”). Sonner v. Premier Nutrition Corp., 971 F.3d 834, 3 844 (9th Cir. 2020). The Court analyzed Sonner and declined to dismiss Plaintiff’s claim for 4 equitable restitution under the UCL and concluded that Plaintiff had sufficiently “plead[ed] that 5 there is an inadequate legal remedy” because the Court previously dismissed Plaintiff’s sole 6 damages claim “on the merits.” Order at 18. The Court acknowledged that “the analysis is less 7 clear where the legal remedy has been denied despite plaintiff’s best efforts” and noted that other 8 courts have indicated that imposing the burden iterated in Sonner at the pleading stage may be 9 premature. Id. at 16. 10 III. LEGAL STANDARD 11 For the Court to certify its opinion for interlocutory review, there must be: (i) a controlling 12 question of law; (ii) substantial grounds for difference of opinion; and (iii) a likelihood that an 13 immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. 14 § 1292(b). Generally, interlocutory review is applied “only in exceptional cases where decision of 15 an interlocutory appeal might avoid protracted and expensive litigation. It was not intended 16 merely to provide review of difficult rulings in hard cases.” U.S. Rubber Co. v. Wright, 359 F.2d 17 784, 785 (9th Cir. 1966). Certification is at the discretion of the district court. Swint v. Chambers 18 Cnty. Comm’n, 514 U.S. 35, 47 (1995). The Court concludes Defendant has failed to satisfy (i) 19 and (iii). 20 IV. DISCUSSION 21 A. Controlling Question of Law 22 The first requirement that Defendant raise a controlling question of law is satisfied if 23 “resolution of the issue on appeal could materially affect the outcome of the litigation.” In re 24 Cement Litig., 673 F.2d 1020, 1026 (9th Cir. 1982). The challenged issues need not be dispositive 25 of the entire lawsuit to be controlling. See Kuehner v. Dickinson & Co., 84 F.3d 316, 319 (9th Cir. 26 1996). Although the phrase “controlling question of law” is not further defined in the statute, 27 examples include fundamental inquiries like “who are necessary and proper parties, whether a 1 be applied.” Cement Litig., 673 F.2d at 1026 (citing United States v. Woodbury, 263 F.2d 784, 2 787 (9th Cir. 1959)). Notably, where an outcome “would not result in the wrong party prevailing, 3 but rather the calculation of any potential final judgment,” it does not rise to the level of a 4 controlling question of law materially affecting the outcome of the litigation. Zulewski v. Hershey 5 Co., Case No. 11-cv-05117-KAW, 2013 WL 1334159, at *1 (N.D. Cal. Mar. 29, 2013). 6 Here, Defendant is correct that an immediate appeal would, if successful, eliminate one 7 remedy of Plaintiff’s UCL claim (equitable restitution). However, in deciding whether discovery 8 should move forward, Magistrate Judge Tse properly noted that “[e]ven if restitution is taken off 9 the table, the UCL claim for injunctive relief is moving forward.” Discovery Order at 1; Docket 10 No. 67. Hence, irrespective of the appeal herein, this Court must still reach the question of 11 Defendant’s liability under the UCL, regardless of whether equitable restitution is available as a 12 remedy. 13 As such, the issue for which Defendant seeks an interlocutory review (the scope of 14 Sonner’s inadequate legal remedies requirement) is not a controlling question of law. See 15 Banneck v. Federal National Mortgage Association, No. 17-cv-04657- WHO, 2018 WL 5603632, 16 at *2 (N.D. Cal. Oct. 29, 2018) (holding that there was no controlling question of law because 17 movant “ignores the chance that this Court might resolve the matter at the liability phase” even if 18 statutory damages and injunctive relief were precluded on successful immediate appeal); F.T.C. v. 19 Swish Mktg., No. 09-cv-03814-RS, 2010 WL 1526483, at *2 (N.D. Cal. Apr. 14, 2010) (denying 20 certification and noting that the availability of equitable remedies is not a controlling question 21 because the “possibility for purely injunctive relief still presents a live controversy”). 22 B. Substantial Grounds for Difference of Opinion 23 A substantial ground for difference of opinion exists where “novel and difficult questions 24 of first impression are presented” on which “fair-minded jurists might reach contradictory 25 conclusions.” Reese v. BP Exploration (Ak.) Inc., 643 F.3d 681, 688 (9th Cir. 2001). As noted in 26 this Court’s Order, there is a wide variance in district courts’ approaches to applying Sonner: 27 specifically with regard to determining how and when a plaintiff must demonstrate that legal 1 substantial grounds for difference of opinion. 2 C. Material Advancement 3 The third element is that an appeal must be “likely to materially speed the termination of 4 the litigation” is related to the first requirement that there be a controlling question of law. 5 Ambrosio v. Cogent Commc’ns, Inc., No. 14-cv-02182-RS, 2016 WL 777775, at *3 (N.D. Cal. 6 Feb. 29, 2016) (quoting Villarreal v. Caremark LLC, 85 F. Supp. 3d 1063, 1071 (D. Ariz. 2015)). 7 Considering the effect of a reversal on the case, an interlocutory appeal materially advances the 8 termination of the litigation where it “promises to advance the time for trial or to shorten the time 9 required for trial.” Dukes v. Wal-Mart Stores, Inc., 01-cv-02252-CRB, 2012 WL 6115536, at *5 10 (N.D. Cal. Dec. 10, 2012) (quoting 16 Federal Practice & Procedure § 3930 at n. 39 (2d ed.)). 11 Here, resolution of the availability of an equitable remedy of restitution would not obviate 12 the central issue of liability. Nor would class certification, summary judgment, or trial be 13 significantly simplified. Thus, an interlocutory appeal would not satisfy the “material 14 advancement” factor. See Swish Mktg., 2010 WL 1526483, at *4 (finding the issue is not 15 exceptional when liability has not yet been established); see also Realtek Semiconductor Corp. v. 16 LSI Corp., No. C-12-03451-RMW, 2013 WL 3568314, at *3 (N.D. Cal. July 12, 2013) (“The 17 possibility of avoiding some liability does not comport with the purpose of § 1292(b) certification, 18 which is to be used only in ‘exceptional circumstances’ not present here.”). 19 V. CONCLUSION 20 The Court finds that Defendant has not met its burden of satisfying all three requirements 21 to justify the extraordinary remedy it seeks. For the reasons stated, the motion to certify the 22 February 4, 2022 Order for interlocutory review is DENIED. 23 This order disposes of Docket No. 64 24 IT IS SO ORDERED. 25 26 Dated: March 21, 2022 27 ______________________________________