United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION TO STAY PENDING
APPEAL AND DENYING PLAINTIFF'S MOTION TO CERTIFY
DEFENDANTS' INTERLOCUTORY APPEAL AS FRIVOLOUS RE: DKT.
NOS. 46, 48
ILLSTON UNITED STATES DISTRICT JUDGE.
in the present action have filed a motion to stay the
proceedings, pending resolution of their interlocutory
appeal. Plaintiff has filed a motion to certify
defendants’ interlocutory appeal as frivolous. A
hearing on both motions is currently scheduled for October 4,
2019. Pursuant to Civil Local Rule 7-1(b), the Court
determines that this matter is appropriate for resolution
without oral argument and VACATES the hearing. For the
following reasons set forth below, the Court GRANTS
defendants’ motion to stay proceedings pending appeal
and DENIES plaintiff’s motion to certify
defendants’ interlocutory appeal as frivolous.
November 16, 2018, plaintiff Eisho Suzuki filed a complaint
against defendants, the County of Contra Costa
(“County”), Suzanne Porter
(“Porter”), and Does 1–10, alleging
defendants violated his civil rights under 42 U.S.C. §
1983. Dkt. No. 1. Plaintiff alleges Porter violated his civil
rights by knowingly fabricating evidence of child abuse,
which plaintiff’s wife later used in a child custody
dispute, resulting in plaintiff losing custody of his
children. Dkt. No. 16 (FAC ¶ 20). Plaintiff also alleges
the County violated his civil rights by hiring Porter as a
social worker when the County knew or should have known
Porter was unfit to be a social worker. FAC ¶ 32.
this Court granted in part and denied in part
defendants’ motion to dismiss the first amended
complaint, see Dkt. No. 31, defendants filed a
motion for judgment on the pleadings. Dkt. No. 38 (Mot. J.
Pleadings). In the motion, defendants argued that Porter is
entitled to qualified immunity because it is not clearly
established that she violated plaintiff’s Fourteenth
Amendment rights by fabricating evidence that another used in
private litigation. Id. at 7:1–6. On August 8,
2019, this Court issued an order denying the motion for
judgment on the pleadings. Dkt. No. 42 (Order Den.
Defs.’s Mot. J. Pleadings). This Court found that
Porter is not entitled to qualified immunity, after rejecting
defendants’ argument that qualified immunity is lost
only when a government official both fabricates and
personally uses the fabricated evidence. Id. at
11:10–14. On August 19, 2019, defendants appealed the
order to the United States Court of Appeals for the Ninth
Circuit. Dkt. No. 43.
defendants move to stay the proceedings, pending resolution
of their interlocutory appeal of this Court’s order
denying their motion for judgment on the pleadings. Dkt. No.
46 (Defs.’s Mot. Stay Pending Appeal). Plaintiff moves
to certify defendants’ interlocutory appeal as
frivolous. Dkt. No. 48 (Pl. Mot. Certify Defs.’s Appeal
Frivolous). Each party has opposed the other’s motion
and both sides have filed reply briefs. Dkt. Nos. 55, 56, 58.
general, a district court’s denial of qualified
immunity is immediately appealable.” Martinez v.
City of Pittsburg, No. 17-cv-04246-RS, 2019 U.S. Dist.
LEXIS 58568, at *3 (N.D. Cal. Apr. 4, 2019) (citing
Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)). An
appeal of a denial of qualified immunity
“‘divests the district court of jurisdiction to
proceed with trial’ on the issues involved in the
appeal.” Id. (citing Chuman v.
Wright, 960 F.2d 104, 105 (9th Cir. 1992)). Thus, the
court is compelled to stay the proceedings in regard to the
issues on appeal, unless the appeal is frivolous.
Chuman, 960 F.2d at 105. However, a district court
“still has jurisdiction over aspects of the case that
are not the subject of the appeal.” Castro v.
Melchor, 760 F.Supp.2d 970, 1003 (D. Haw. 2010); see
also Martinez, 2019 U.S. Dist. LEXIS 58568, at *5.
deciding whether to stay an action, a district court must
weigh all relevant “competing interests.”
Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th
Cir. 2005). A district court must consider the following four
factors in making its determination, including: “(1)
whether the stay applicant has made a strong showing that
[one] is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3)
whether issuance of a stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies.” Nken v. Holder, 556
U.S. 418, 434 (2009).
party appeals the denial of qualified immunity, a district
court may nevertheless certify the appeal as frivolous, then
proceed with trial. Padgett v. Wright, 587 F.3d 983,
985 (9th Cir. 2009). An appeal is frivolous only when it is
wholly without merit or the results are obvious. Amwest
Mortgage Corp. v. Grady, 925 F.2d 1162, 1165 (9th Cir.
1991). “This means that the appeal must be so baseless
that it does not invoke appellate jurisdiction such as when
the disposition is so plainly correct that nothing can be
said on the other side.” Schering Corp. v. First
DataBank, Inc., No. C 07-01142 WHA, 2007 U.S. Dist.
LEXIS 45813, at *3 (N.D. Cal. June 18, 2007) (quoting
Apostol v. Gallion, 870 F.2d 1335, 1338-39 (7th Cir.
Motion to Certify Defendants’ Interlocutory Appeal as
argues that “for [d]efendants’ appeal not to be
frivolous, then a reasonable social worker would not
have to know it is illegal to deliberately fabricate evidence
[or] . . . that it is illegal to use the fabricated evidence
. . . .” Id. at 8:4–8. Defendants argue
that their appeal is not frivolous because they use case law
to support their arguments. Dkt. No. 56 at 4:23–25,
appeal from the denial of qualified immunity is not frivolous
solely because the district court based its order on what it
perceived to be clearly established law. See Lum v.
County of San Joaquin, No. CIV. S-10-1807 LKK/DAD, 2012
U.S. Dist. LEXIS 79949, at *8 (E.D. Cal. June 8, 2012)
(denying certification because “any district court
order denying qualified immunity would rest on a conclusion
about ‘clearly established’ law, and such a basis
rendering the decision unappealable would be contrary to the
Supreme Court’s holding . . . that rulings on qualified
immunity are eligible for interlocutory appeal.”). To
certify the ...