California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc. et al

Filing 252

ORDER signed by Judge Garland E. Burrell, Jr. on 01/04/16 ORDERING that the 224 Motion for Certificate of Appealability is DENIED. (Benson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA SPORTFISHING
PROTECTION ALLIANCE, a nonprofit corporation,

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No. 2:10-cv-01207-GEB-AC

Plaintiff,

ORDER DENYING DEFENDANTS’ MOTION
FOR AMENDMENT OF THE ORDER
GRANTING IN PART AND DENYING IN
PART EACH PARTY’S SUMMARY
JUDGMENT MOTION TO PERMIT
CERTIFICATION FOR INTERLOCUTORY
APPEAL PURSUANT TO 28 U.S.C.
§ 1292(b)

v.
CHICO SCRAP METAL, INC., a
California corporation;
GEORGE W. SCOTT, SR.,
individually and as trustee
of GEORGE W. SCOTT, SR.
REVOCABLE INTER VIVOS TRUST
DATED SEPTEMBER 25, 1995,

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Defendants.

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Defendants Chico Scrap Metal, Inc., George W. Scott,

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Sr., individually and as trustee of the George W. Scott, Sr.

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Revocable

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(collectively,

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Order Granting in Part and Denying in Part Each Party’s Summary

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Judgment Motion, (Order Granting in Part and Den. in Part Each

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Party’s

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Defendants seek amendment that would certify for interlocutory

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appeal under 28 U.S.C. § 1292(b) the following two questions:

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Inter

Summ.

Vivos

Trust,

“Defendants”),

J.

Mot.

seek

(“Order”),

dated

September 25,

amendment

ECF

No.

of

221).

this

1995,
Court’s

Specifically,

Whether water quality standards, including
the California Toxics Rule (“CTR”), apply to
the quality of the receiving water, not the
quality
of
the
industrial
storm
water
discharge[;] and
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Whether a storm water discharge sample from
an industrial facility in exceedance of the
CTR, without regard to the sampling, testing
or condition of the receiving waters, is a
violation of the statement in the 2007 or the
2014
General
Permit
that
storm
water
discharges “shall not cause or contribute to
an exceedance of any applicable water quality
standards[.]”

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(Defs.’ Mot. for Amendment of Order (“Mot.”) 2:8–14, ECF No. 224

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(footnote and citation omitted).) Although Defendants state a

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2007 General Permit is involved in the second question they seek

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to have certified, the Court will construe this as referring to

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the 1997 General Permit, since Defendants state in their motion

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that the 1997 General Permit was “[t]he General Permit in effect

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at the time of the parties’ summary judgment briefing.” (Mot. 2

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n.1.)

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Defendants also request this proceeding in the district

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court be stayed should their certification motion be granted.

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(Mot. 12:13–16.)
I.

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“Section

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1292(b)

LEGAL STANDARD
provides

a

mechanism

by

which

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litigants can bring an immediate appeal of a non-final order upon

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the consent of both the district court and the court of appeals.”

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In re Cement Antitrust Litig., 673 F.2d 1020, 1025–26 (9th Cir.

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1982).

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interlocutory appeal only if the following three requirements are

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satisfied:

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law,” (2) “there is substantial ground for difference of opinion”

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on that controlling question of law, and (3) “an immediate appeal

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from the order may materially advance the ultimate termination of

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the litigation.” 28 U.S.C. § 1292(b). The Ninth Circuit states

The

district

(1)

the

court

“order

may

certify

involves

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a

a

ruling

controlling

for

such

question

an

of

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since “Section 1292(b) is a departure from the normal rule that

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only final judgments are appealable . . . [it] therefore must be

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construed narrowly[,]” James v. Price Stern Sloan, Inc., 283 F.3d

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1064,

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exceptional situations in which allowing an interlocutory appeal

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would avoid protracted and expensive litigation.” In re Cement

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Antitrust

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party

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‘exceptional circumstances justify a departure from the basic

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policy of postponing appellate review until after the entry of a

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final judgment.’” Ass’n of Irritated Residents v. Fred Schakel

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Dairy, 634 F. Supp. 2d 1081, 1087 (E.D. Cal. 2008) (quoting

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Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978)).

1068

n.6

(9th

Litig.,

seeking

Cir.

673

F.2d

review

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II.

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Defendants
would

2002),

at

and

shall

“be

1026
the

[has]

(citations
burden

of

used

only

in

omitted).

“The

showing

that

MATERIALLY ADVANCE

argue

the

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the remaining portion of the first and fifth causes of action,

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[thereby] eliminating the need to present evidence at trial o[n]

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the 62 [storm water discharge] samples taken by Plaintiff.” (Mot.

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9:5-9.) They further argue “this Court’s ruling as to the 65

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storm

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samples taken on December 11, 2014, premised on the applicability

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of the CTR standards to these storm water discharges, would be

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reversed,”

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evidence

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Defendants for these 65 sample exceedances.”1 (Mot. 9:15–17.)

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1

and

on

the

the

reversal

amount

of

would

by

obviate

penalties

to

Defendants

the
be

need

assessed

of

have

litigation, contending that “[a] successful appeal would resolve

taken

termination

to

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samples

the

seek

certified

[discharge]

advance

they

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water

materially

questions

and

“to

the

hear

against

These numbers have been reconsidered per the Court’s Order Granting

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the

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Plaintiff counters: “The storm water sample results are

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pertinent to all of Plaintiff’s causes of action that will be

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tried in February.”2 (Pl.’s Opp’n to Mot. (“Opp’n”) 3:5–6, ECF

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No. 240.) Plaintiff further counters: “[R]egardless of a reversal

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on CTR, Plaintiff will need to put on evidence regarding the

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storm

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results support Plaintiff’s other causes of action for additional

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violation of the [General] Permit[,] . . . the [federal Clean

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Water]

water

samples

Act[,]

and

taken

by

third-parties,

Proposition

65.”

(Opp’n

as

these

3:12–15

sample

(emphasis

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added).) Plaintiff also rejoins that in the penalty phase of this

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action, “Plaintiff will not present separate evidence to support

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penalties in relation to the 65 storm water sample results taken

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by third-parties.” (Opp’n 3:23–24.)

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Defendants have not shown that an immediate appeal from

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the Order “may materially advance the ultimate termination of the

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litigation.”

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“[m]otion comes after [multiple] years of extensive discovery and

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dispositive

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resolution of this matter at trial,” Cmty. Ass’n for Restoration

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of the Env’t, Inc. v. Cow Palace, LLC, No. 2:13-CV-3016-TOR, 2015

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WL 403178, at *2 (E.D. Wash. Jan. 28, 2015); trial is scheduled

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to

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“allowing an interlocutory appeal would [not] avoid protracted

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and expensive litigation.” In re Cement Antitrust Litig., 673

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F.2d at 1026 (citations omitted).

begin

in

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U.S.C.

motion

early

§ 1292(b).

practice

2016.

At

and

this

Defendants’

immediately

late

stage

certification

before

in

the

final

action,

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Defendants’ Motion for Partial Reconsideration.
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A Minute Order issued on January 4, 2016, reschedules the trial to
commence at 9:00 AM on April 19, 2016. (ECF No. 249.)

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III.

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CONCLUSION

For the stated reasons, Defendants’ motion is denied.
Dated:

January 4, 2016

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