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Lisker v. City of Los Angeles

United States District Court, Ninth Circuit

January 27, 2014

BRUCE LISKER, Plaintiff,
CITY OF LOS ANGELES, et al., Defendants.


OTIS D. WRIGHT, II, District Judge.


On December 16, 2013, Defendants filed a Motion for Certification of Interlocutory Appeal under 28 U.S.C. § 1292(b). (ECF No. 445.) The Defendants seek to appeal the Court's February 4, 2013 Order denying the Defendant City of Los Angeles's Motion for Summary Judgment on Lisker's Monell claim and denying all Defendants' Motion for Summary Judgment based on the statute of limitations. (ECF No. 432.) For the reasons discussed below, the Court DENIES Defendants' Motion.[1]


This action was reassigned to this Court on May 13, 2013, after the retirement of the Honorable Howard A. Matz. (ECF No. 441.) Prior to retirement, Judge Matz granted in part and denied in part Defendants' Motion for Summary Judgment. (ECF No. 432.) The Court granted Defendants' motion with respect to Lisker's claim that the Defendants violated his Fourteenth Amendment right to a fair trial by failing to disclose exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963). ( Id. ) The Court denied Defendants Andrew Monsue, and Howard Landgren's motion with respect to Lisker's claim that the Defendants had violated his Fourteenth Amendment right to a fair trial by introducing fabricated evidence at his criminal trial-concluding that Defendants were not shielded by absolute witness immunity. ( Id. ) On March 4, 2013, Defendants Monsue and Landgren filed an interlocutory appeal in the Ninth Circuit challenging the Court's denial of absolute witness immunity. (ECF No. 434.) This appeal is currently pending in the Ninth Circuit.

The Court also denied Defendant City of Los Angeles's motion for summary judgment with respect to Lisker's Monell and statute-of-limitations claims. (ECF No.432.) On December 16, 2013, Defendants filed a motion seeking certification of the remaining issues-the Monell claims against the City and all Defendants' assertion of the statute of limitations-for appeal under to 28 U.S.C. § 1292(b).


Under the final-judgment rule codified in 28 U.S.C § 1291, appellate courts have jurisdiction over "appeals from all final decisions of the district courts of the United States." Accordingly, "parties may appeal only from orders which "end[] the litigation on the merits and leave[ ] nothing for the court to do but execute the judgment." Couch v. Telescope Inc. , 611 F.3d 629, 632 (9th Cir. 2010) (quoting Coopers & Lybrand v. Livesay , 437 U.S. 463, 467 (1978)) (internal quotations omitted).

But there is a narrow exception to the final-judgment rule: a district court may certify a nonfinal order for interlocutory appeal by stating in writing, as part of the order, that the order (1) "involves a controlling question of law, " (2) "as to which there is substantial ground for difference of opinion, " and (3) "that an immediate appeal may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b).

Because the requirements of § 1292(b) are jurisdictional, courts cannot certify an appeal if the circumstances don't strictly satisfy the statutory prerequisites for granting certification. Couch , 611 F.3d at 633. Certification under § 1292(b) is not routine. Indeed, interlocutory appeals are reserved for only exceptional cases. See Caterpillar Inc. v. Lewis , 519 U.S. 61, 74 (1996); see also Switz. Cheese Ass'n v. E. Horne's Mkt. , 385 U.S. 23, 25(1966) (noting that certification is contrary to the federal policy against piecemeal appeals).


The Defendants argue that certification is appropriate because an appellate determination that the Lisker's claims are time-barred and that the City has no Monell liability could materially affect the outcome of the litigation and potentially terminate the entire action. Lisker agrees that an interlocutory appeal of these issues may materially advance the termination of the ligation because settlement discussions would likely be more productive after these issues are resolved. But Lisker asserts that the third requirement for certification-that substantial grounds for difference of opinion exist-is absent because the law regarding both issues is clearly established. Because the Court agrees with Lisker, the Court DENIES Defendants' Motion to Certify Interlocutory Appeal. (ECF No. 445.)

A. Statute of Limitations

Defendants first assert that a substantial ground for difference of opinion exists as to whether Lisker's action is barred by the applicable statute of limitations. A substantial ground for difference of opinion may exist where "novel and difficult questions of first impression are presented." Couch , 611 F.3d at 633. But a substantial difference of opinion does not exist merely "because a court is the first to rule on a particular question or just because counsel contends that one precedent rather than another is controlling." Id. The mere fact that "settled law might be applied differently does not establish a substantial ground for difference of opinion." Id. Defendants contend that it is unsettled whether Lisker's established "probable innocence"-which excused his untimely habeas petition-also "serves to indefinitely delay accrual and the running of the statute of limitations on Lisker's § 1983 claims. (Mot. 6.) Defendants inexplicably import their contention that Lisker's habeas petition should have been denied as untimely into their statute-of-limitations argument. The timeliness of Lisker's habeas petition is unrelated to the statute-of-limitations issue. Rather it is the delayed-accrual rule of Heck v. Humphries , 512 U.S. 477, 489 (1994), that applies in this action.

As the Court noted in its Summary Judgment Order, the Supreme Court has held that,

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.

512 U.S. at 486-87. Additionally, "a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." Id. at 489-90. Accordingly, Lisker could not have brought his § 1983 cause of action for damages-attributable to his unconstitutional conviction-unless and until the conviction was invalidated. Because Lisker timely filed suit after the invalidation of his conviction, his claim is not subject to a statute-of-limitations defense. The "probable innocence" that excused his untimely habeas petition is wholly irrelevant to this inquiry. Because the law regarding the requirements-and thus the accrual-of a § 1983 action for damages for unconstitutional conviction is well settled, bare disagreement with the Court's ruling is insufficient to evince a substantial ground for difference of opinion. See Couch , 611 F.3d at 633.

B. Monell Liability

Similarly, Lisker's Monell claim does not present a substantial ground for difference of opinion. Lisker's Monell claim relies on both a custom-or-practice theory and on a ratification theory. The Defendants contend that whether "post-event ratification or failure to remedy decades after the injury-producing event [is] sufficient as a matter of law to impose liability on a municipality under Monell " is unanswered by controlling authority. Therefore, Defendants assert, it is subject to a substantial ground for difference of opinion. (Mot. 6.) But it is well established that ratification may be established by proving a municipality's failure to meaningfully investigate and respond to constitutional violations. See, e.g., Fuller v. City of Oakland , 47 F.3d 1522, 1535 (9th Cir. 1995); Larez v. City of L.A. , 946 F.2d 630, 645-48 (9th Cir. 1991). It is also well established that a deficient disciplinary system may provide a custom-and-practice basis for municipal liability, which may be proven by post-event conduct. Larez , 946 F.2d at 647. Defendants do not dispute that this is the established law, but rather contend that the time delay between the events and the alleged ratification or failure to remedy is so great that it destroys the required causal link for Monell liability.

Nothing in the Ninth Circuit's analysis in the above cases mandates that ratification or failure to remedy occur in some specified time. And substantiality is more than mere novelty or vigorous disagreement by the losing party. Here, the Defendants merely dispute whether the Court correctly applied the established ratification and failure-to-remedy law to the specific timeline of this case. Certification is inappropriate where the Court must delve deep into the record-a "question of law" does not require the application of settled law to fact. McFarlin v. Conseco Servs. LLC , 381 F.3d 1251, 1258 (11th Cir. 2004) (noting that "what the framers of §1292(b) had in mind is more of an abstract legal issue... [that] the court of appeals can decide quickly and cleanly without having to study the record." (internal quotation marks omitted)).

This is not an "exceptional case" that justifies interlocutory appeal. If this Court were to find a substantial ground for disagreement merely because the parties disagree as to how the established law should be construed, an interlocutory appeal would become the rule rather than the exception. Further, such a finding would undermine the established policy of requiring finality before appellate review is ripe. See Caterpillar , 519 U.S. at 74 ("Routine resort to § 1292(b) requests would hardly comport with Congress' design to reserve interlocutory review for exceptional cases while generally retaining for the federal courts a firm final judgment rule." (internal quotation marks omitted)).


Because the requirements set forth in § 1292(b) have not been satisfied, the Court declines to certify the question for interlocutory appeal. Defendants' Motion to Certify Interlocutory Appeal is DENIED.


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