United States District Court, N.D. California
THE GUIDIVILLE RANCHERIA OF CALIFORNIA, AND UPSTREAM POINT MOLATE LLC, Plaintiffs,
THE UNITED STATES OF AMERICA, SALLY JEWELL, et al., And THE CITY OF RICHMOND, Defendants. And Counterclaims.
ORDER DENYING MOTION TO AMEND AND CERTIFY ORDERS FOR INTERLOCUTORY REVIEW AND DENYING REQUEST FOR STAY WITHOUT PREJUDICE
YVONNE GONZALEZ ROGERS, District Judge.
Plaintiffs Upstream Point Molate, LLC and Guidiville Rancheria of California filed their Motion to Amend and Certify Orders for Interlocutory Review Pursuant to 28 U.S.C. section 1292(b). (Dkt. No. 237.) In that motion, Plaintiffs request that the Court certify two orders for immediate interlocutory appeal pursuant to 28 U.S.C. section 1292: (a) the Court's July 24, 2014 Order Denying: (1) Plaintiff's Motion For Leave To File Motion For Reconsideration; and (2) Plaintiff's Motion For Leave To File Fourth Amended Complaint (Dkt. No. 236 ["Reconsideration Order"]); and (b) the Court's December 12, 2013 Order Granting Motion of City of Richmond For Judgment On The Pleadings (Dkt. No. 212 ["JOP Order"].) Plaintiffs also request the Court stay proceedings in this matter until the Ninth Circuit resolves Plaintiffs' petition for interlocutory appeal.
Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court hereby DENIES the motion to certify orders for interlocutory review. The Court finds that Plaintiffs have not met their burden to establish the exceptional circumstances required for certification of the interlocutory orders at issue here. The request to stay the action pending interlocutory appeal is DENIED WITHOUT PREJUDICE as premature, since no appeal is pending.
Under Title 28 U.S.C. section 1292(b), the district court may certify appeal of an interlocutory order if: (1) the order involves a controlling question of law, (2) appealing the order may materially advance the ultimate termination of the litigation, and (3) there is substantial ground for difference of opinion as to the question of law. "Section 1292(b) is a departure from the normal rule that only final judgments are appealable, and therefore must be construed narrowly." James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n. 6 (9th Cir.2002). Courts apply the statute's requirements strictly, and grant motions for certification only when exceptional circumstances warrant it. Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). A party seeking certification to appeal an interlocutory order has the burden of establishing the existence of such exceptional circumstances. Id. A party must establish that all three requirements of section 1292(b) are met in order to seek an appeal of an interlocutory order. Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010).
1. Substantial Ground for Difference of Opinion
Plaintiffs have not established that there is "substantial ground for difference of opinion." The question of whether there is a "substantial ground for difference of opinion" turns upon the extent to which controlling law is unclear because, for instance, "the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented." Couch, 611 F.3d at 633. An argument "[t]hat settled law might be applied differently does not establish a substantial ground for difference of opinion." Id. Likewise, disagreement with the Court's ruling is not sufficient to establish a "substantial ground for difference of opinion." Id.
Plaintiffs argue that "[t]here is still unclear and inconsistent authority" as to whether their claims "for breach of the LDA [Land Disposition Agreement] for failing to issue a final determination under CEQA or failing to exercise its discretion to evaluate the CEQA considerations in good faith towards achieving the stated goals of the LDA" constitute challenges to the approval process under CEQA that could only be made by writ petition. (Mtn. at 7.) However, Plaintiffs cite to no competing authority and offer nothing but their own conclusory arguments to establish "substantial ground for difference of opinion."
Dismissal of Plaintiffs' claims was based chiefly upon the fact that the terms of a settlement agreement between the parties precluded the claims. (JOP Order at 10-11.) The Court rejected the breach of contract claims for the additional reason that they constituted an improper attack on the City's exercise of its discretionary CEQA approval authority because a writ petition is the exclusive mechanism for challenging that conduct, citing Mission Oaks Ranch, Ltd. v. Cnty of Santa Barbara, 65 Cal.App.4th 713, 722 (1998), overruled on other grounds by Briggs v. Eden Council for Hope and Opportunity, 19 Cal.4th 1106 (1999) (barring developer's breach claim against county based on allegedly improper EIR when developer had not challenged the EIR). In the instant motion, Plaintiffs' assert that there are "no cases directly on point in this or any other jurisdiction" on the issue of the interplay between a contract or settlement agreement and CEQA, including Mission Oaks, and thus there is a "difference of opinion." (Mtn. at 7.) Even assuming the assertion was true, that alone would not establish a "substantial ground for a difference of opinion" as required by section 1292(b). Couch, 611 F.3d at 633 ("just because a court is the first to rule on a particular question...does not mean there is such a substantial difference of opinion as will support an interlocutory appeal") (internal citation omitted). Plaintiffs' disagreement with the Court's decision is not difference of opinion sufficient to create a certifiable issue.
Finally, Plaintiffs' argue that certification is appropriate upon nothing more than a showing that "the case law is confused, " citing out-of-circuit authority. This is an incorrect statement of the applicable Ninth Circuit law. It is a standard that they have failed to meet in any event.
2. Controlling Question of Law
Plaintiffs also have not established that there is a "controlling question of law" to be determined on appeal. Although the statute and case law has not established a precise definition for what constitutes a "controlling question of law, " the Ninth Circuit has suggested that a "controlling question" should be limited to such issues as who are proper parties, whether a court has jurisdiction, and whether state or federal law should apply. See Rollins v. Dignity Health, 13-CV-01450-TEH, 2014 WL 1048637 (N.D. Cal. Mar. 17, 2014) citing In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982). Plaintiffs have not established that the ...