Robin K Fortyune v. City of Lomita et al

Filing 28

ORDER GRANTING DEFENDANT CITY OF LOMITA'S MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL and certifies its October 28, 2011 Order for interlocutory appeal by Judge Dean D. Pregerson (lc) Modified on 4/4/2012 (lc).

1
2

O

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

ROBIN K. FORTYUNE,

12

)
)
)
)
)
)
)
)
)
)

Plaintiff,

13

v.

14

CITY OF LOMITA,

15

Defendant.
___________________________

Case No. CV 11-06644 DDP (JCGx)
ORDER GRANTING DEFENDANT’S MOTION
FOR CERTIFICATION OF
INTERLOCUTORY APPEAL
[Docket No. 18]

16
17

Presently before the court is Defendant City of Lomita’s

18

Motion for Certification of Order for Appeal Pursuant to 28 U.S.C.

19

Section 1292(b) (“Motion”).

20

papers, the court grants the Motion and adopts the following Order.

21

I.

22

Having reviewed the parties’ moving

BACKGROUND
On October 28, 2011, the court issued an Order Denying

23

Defendant’s Motion to Dismiss.

24

of Lomita (“City”) could have violated the Americans with

25

Disabilities Act’s broad mandate by failing to provide handicap-

26

accessible public parking in its on-street diagonal stalls, despite

27

the absence of any statutory language or current regulation

28

expressly addressing such on-street parking.

The court held that Defendant City

The City now seeks

1

interlocutory appellate review of this holding.

2

II.

LEGAL STANDARD

3

Title 28 U.S.C. § 1292(b) provides:

4

When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of
the opinion that such order involves a controlling question
of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of
the litigation, he shall so state in writing in such order.
The Court of Appeals which would have jurisdiction of an
appeal of such action may thereupon, in its discretion,
permit an appeal to be taken from such order, if
application is made to it within ten days after the entry
of the order . . . .

5
6
7
8
9
10

Thus, the three requirements for certification of an
11
interlocutory appeal under § 1292(b) are: “(1) that there be a
12
controlling question of law, (2) that there be substantial grounds
13
for difference of opinion, and (3) that an immediate appeal may
14
materially advance the ultimate termination of the litigation.”

In

15
re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982).
16
This provision is “to be used only in exceptional situations in
17
which allowing an interlocutory appeal would avoid protracted and
18
expensive litigation.”

Id.

19
III. DISCUSSION
20
Here, there is no dispute that the underlying Order involves a
21
controlling question of law and that an immediate appeal may
22
materially advance the litigation.

The parties disagree, however,

23
whether there are substantial grounds for a difference of opinion
24
on the legal holding at issue.

Although the court is confident

25
that its holding flows sensibly from existing law, the court
26
acknowledges that the matter is not settled and that at least one
27
circuit decision suggests a different outcome.
28
2

See Lara v.

1

Cinemark USA, Inc., 207 F.3d 783 (5th Cir. 2000).

2

the court finds the second prong met.

3

Accordingly,

Finally, the court finds that “exceptional circumstances” here

4

justify an interlocutory appeal.

As the City argues, without

5

regulations on point, it will be very difficult to determine the

6

appropriate remedy for the alleged ADA violation.

7

were to proceed to resolve this litigation and then be reversed,

8

the additional litigation would waste resources.

9

the court is affirmed, no time will be wasted because the City

If the court

In contrast, if

10

presumably would have appealed a final determination in any case.

11

For this reason, and because of the importance of the question at

12

issue, the court finds that the “exceptional circumstances” here

13

justify an interlocutory appeal.1

14

IV.

CONCLUSION

15

Based on the foregoing analysis, the court GRANTS the City’s

16

Motion and certifies its October 28, 2011 Order for interlocutory

17

appeal.

18

IT IS SO ORDERED.

19
20

Dated: April 4, 2012
DEAN D. PREGERSON
United States District Judge

21
22
23
1

24
25
26
27
28

Plaintiff also argues that the City’s Motion is improper
because the court did not state in the underlying Order that
immediate appeal was appropriate. Plaintiff contends that the City
should therefore have filed a motion to amend the Order. The City
disagrees that such an amendment is required. It is unnecessary to
resolve this dispute. As the City suggests, the court hereby
amends its prior Order to state that it “involves a controlling
question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the litigation.”
3