The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
By Memorandum and Order dated September 24, 2012, this Court denied Third-Party Defendant Pinpoint Holding's Motion for Summary Judgment (which alternatively sought partial summary judgment) against Third-Party Plaintiff Vezer Industrial Professionals, Inc. PinPoint Holdings subsequently filed a Motion Requesting Certification of Order for Appeal pursuant to 28 U.S.C. § 1292(b). That Motion, which is now before the Court, asks that the Court certify for immediate appeal its decision rejecting PinPoint's claim that the indemnity agreement under which Vezer seeks express and equitable indemnity against PinPoint was unenforceable because both parties to the agreement had not executed the purchase order under which indemnity is claimed. The Court accordingly rejected PinPoint's claim that it was entitled to summary judgment as to Vezer's indemnity claims on that ground alone.
28 U.S.C. § 1292(b) authorizes an immediate appeal where the issue in question both "presents controlling questions of law as to which there is substantial ground for difference of opinion" and involves circumstances where "an immediate appeal from the order may materially advance the ultimate termination of the litigation." The Ninth Circuit is clear in directing that resort to immediate appeal under Section 1292(b) should be used only in "exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982). Instead, as Ninth Circuit precedent has recognized, interlocutory appeal should be "applied sparingly." Id.
In order to justify the appellate shortcut represented by interlocutory appeal, its proponent has the burden to show that "exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978).
The Court's September 24, 2012 Memorandum and Order pointed to a split in California authority with respect to whether both parties to the indemnity agreement are required to sign an indemnity agreement in order for that agreement to be effective. Order, ECF No. 206, 9:17-26. Given that disagreement, the Court found that it could not grant summary judgment in favor of Pinpoint on grounds that no valid indemnity agreement was in force. The Court also noted that the one Ninth Circuit case that addressed the issue, Blake v. Excel Environmental, 194 F.3d 1158 (9th Cir. 1996), did not directly address the split in California law but described the indemnity provision it considered as unenforceable because the indemnitor (here PinPoint) had not signed the agreement. In this case PinPoint signed the Purchase Order, prepared by Vezer, that contained the indemnity agreement and accepted compensation pursuant to the terms of said Order.
PinPoint argues that proceeding to trial here without determining whether the indemnity provision at issue is enforceable would require the Court to entertain substantial testimony at trial (as to whether Plaintiffs were in the course and scope of their employment for workers' compensation purposes, for example) that might otherwise be unnecessary. PinPoint further argues that the case is less likely to settle prior to trial if the issue as to the enforceability of the indemnity provision remains unresolved. Given the above, the Court finds that an immediate appeal in this matter is indicated since such a appeal may "materially advance" - rather than impede or delay -the ultimate termination of this litigation. Reece v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011). Additionally, given the split in California law, the court finds that fair-minded jurists could differ with respect to the enforceability of the indemnity provision, a factor also pointing towards the propriety of an interlocutory appeal.
Third-Party Defendant Pinpoint's Motion Requesting Certification of
Order for Appeal (ECF No. 208) is accordingly GRANTED.*fn1
This case is hereby stayed pending the outcome of PinPoint's
interlocutory appeal to the Ninth Circuit. Because the trial date in
this matter is not currently set until January 13, 2014, that date and
the associated pre-trial deadlines, which will not surface for
approximately another year, will be at present retained.