Su v. Siemens Industry, Inc.

Filing 143

ORDER GRANTING MOTION AND APPLICATION FOR LEAVE TO BRING AN INTERLOCUTORY APPEAL; GRANTING MOTION FOR STAY OF TRIAL COURT PROCEEDINGS by Judge Jon S. Tigar granting 124 Motion for Leave to Appeal. (Attachments: # 1 Certificate/Proof of Service) (wsn, COURT STAFF) (Filed on 6/10/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JULIE SU,

Case No. 12-cv-03743-JST
Plaintiff,

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v.

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ORDER GRANTING MOTION AND
APPLICATION FOR LEAVE TO
BRING AN INTERLOCUTORY
APPEAL; GRANTING MOTION FOR
STAY OF TRIAL COURT
PROCEEDINGS

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Re: ECF No. 124

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SIEMENS INDUSTRY, INC.,

United States District Court
Northern District of California

Defendant.

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I.

INTRODUCTION
Plaintiff, California State Labor Commissioner Julie Su (“Plaintiff”), has moved pursuant

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to 28 U.S.C. §1292(b) to seek interlocutory appeal of two legal issues this court decided in its May

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12, 2014 summary judgment order. Pursuant to Rule 78(b) of the Federal Rules of Civil

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Procedure and Civil Local Rule 7-1(b), the Court finds that the parties’ briefs have thoroughly

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addressed the issues, rendering the matter suitable for disposition without oral argument. The

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hearing on the motion, noticed for June 19, 2014, is hereby VACATED.

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II.

BACKGROUND

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A.

Procedural and Factual Background

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Plaintiff brings a single cause of action under California Labor Code Section 6310

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(“Section 6310”), which prohibits employers from retaliating against employees for making

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certain protected job-related safety complaints. Complaint for Backpay and Injunctive Relief for

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Violation of Labor Code Section 6310 (“Complaint”), Exh. A to Notice of Removal, ECF No. 1.

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Plaintiff alleges that Defendant Siemens Industry, Inc. (“Defendant”) violated Section 6310 in

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terminating Complainants Charles Anderson and Charles Pitschner (“Complainants”) from their

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positions on a crew installing a baggage conveyor system at San Francisco International Airport.

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Id. Complainant Anderson is also an intervenor in this action. See Order Granting Motion to

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Intervene, 2013 WL 3477202, 2013 U.S. Dist. LEXIS 96505, (ECF No. 35).

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The parties brought cross-motions for summary judgment on various legal issues, which

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the court decided on May 12, 2014. Order Granting in Part and Denying in Part Defendant’s

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Motion for Summary Judgment; Denying Plaintiff’s Motion for Partial Summary Judgment

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(“Summary Judgment Order”), 2014 WL 1894315, 2014 U.S. Dist. LEXIS 65184 (ECF No. 102).

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In that order, the court decided two legal issues in Defendant’s favor:

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The court granted judgment to Defendant “as to all claims in this action relating to
complaints made to Turner Construction,” since Turner was not Complainants’

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employer. Summary Judgment Order 6:19-13:11, 2014 WL 1894315, at *4-*8,

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United States District Court
Northern District of California

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2014 U.S. Dist. LEXIS 65184, at 11-24.

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2.

Applying Reeves v. Safeway Stores, 121 Cal.App.4th 95, 108 (2004), the court

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held that to prevail on a Section 6310 claim, Plaintiff must show that “retaliatory

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animus . . . [was] a but-for cause of the employer’s adverse action.” Summary

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Judgment Order 13:13-28, 2014 WL 1894315, at *8 and *8, n.7, 2014 U.S. Dist.

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LEXIS 65184, at 24-25 and 25, n.7.

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Plaintiff then filed the present motion to seek interlocutory appeal of those two legal

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conclusions. Other aspects of the case are described in the Summary Judgment Order. Id. 1-4,

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2014 WL 1894315, at *1-*2, 2014 U.S. Dist. LEXIS 65184, at 1-7.

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C.

Legal Standard

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The final judgement rule ordinarily provides that courts of appeal shall have jurisdiction

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only over “final decisions of the district courts of the United States. 28 U.S.C. § 1291. However,

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“[w]hen a district judge, in making in a civil action an order not otherwise appealable under this

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section, shall be of the opinion that such order involves a controlling question of law as to which

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there is substantial ground for difference of opinion and that an immediate appeal from the order

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may materially advance the ultimate termination of the litigation, he shall so state in writing in

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such order.” 28 U.S.C. § 1292(b). “The Court of Appeals which would have jurisdiction of an

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appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such
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order.” Id. “Certification under § 1292(b) requires the district court to expressly find in writing

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that all three § 1292(b) requirements are met.” Couch v. Telescope Inc., 611 F.3d 629, 633 (9th

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Cir. 2010).

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D.

Jurisdiction

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The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a), since

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Complainants’ state citizenships are diverse from Defendant’s, and the amount in controversy

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exceeds $75,000. See Notice of Removal ¶¶7-16, ECF No. 1.

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III.

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ANALYSIS
The court addresses each of the required findings in order.
A.

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United States District Court
Northern District of California

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Both of the issues decided are purely questions of law. The only question is whether they

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Controlling Question of Law

are “controlling.”
“[A]ll that must be shown in order for a question to be ‘controlling’ is that resolution of the

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issue on appeal could materially affect the outcome of litigation in the district court.” In re

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Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1981) aff’d sub nom.

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Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983) and cause dismissed sub nom. Arizona

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v. U.S. Dist. Court for the Dist. of Arizona, 459 U.S. 961 (1982). However, “the legislative

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history of 1292(b) indicates that this section was to be used only in exceptional situations in which

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allowing an interlocutory appeal would avoid protracted and expensive litigation.” Id. at 1026.

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“A steadily growing number of decisions” have found “that a question is controlling, even though

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its disposition might not lead to reversal on appeal, if interlocutory reversal might save time for

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the district court, and time and expense for the litigants.” Wright & Miller, 16 Fed. Prac. & Proc.

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Juris. § 3930 (3d ed.) (citing cases).

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Here, both legal determinations are likely to signifcantly affect the outcome of the

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litigation. One complainant, Anderson, bases most of his allegations on complaints that were

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made to Turner Construction, and so the court’s ruling is controlling over much of the legal

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dispute between the parties. As for the standard of proof, the difference between proving

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retaliation under a “sunstantial factor” standard as opposed to “but-for” is very significant, and
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leaving the legal issue unresolved will leave a cloud over practically any judgment rendered for

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Defendant in this action.

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The court also notes that the questions decided are of substantial public policy importance

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to the state as a whole, and that Plaintiff is well situated to seek clarity from the appellate court on

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the questions presented.

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B.

Substantial Ground for a Difference of Opinion

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“To determine if a ‘substantial ground for difference of opinion’ exists under § 1292(b),
courts must examine to what extent the controlling law is unclear.” Couch, 611 F.3d at 633.

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“Courts traditionally will find that a substantial ground for difference of opinion exists where “the

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circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the

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United States District Court
Northern District of California

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point, if complicated questions arise under foreign law, or if novel and difficult questions of first

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impression are presented.” Id. (quoting 3 Federal Procedure, Lawyers Edition § 3:212 (2010)

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(footnotes omitted)). “A substantial ground for difference of opinion exists where reasonable

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jurists might disagree on an issue’s resolution, not merely where they have already disagreed.”

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Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011).

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Plaintiff argues, and Defendant does not even dispute, that reasonable jurists could

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disagree on the standard of causation for a Section 6310 action. For reasons explained in the

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Summary Judgment Order, the court does not read Harris v. City of Santa Monica, 56 Cal. 4th

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203, 232 (2013), a FEHA discrimination case, as overruling Reeves, which established that but-for

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causation is the standard in Section 6310 retaliation cases. See also Cuevas v. Sky West Airlines,

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No. 12-cv-05916-CRB, __ F.Supp.2d __, 2014 WL 595938, at *6 (N.D. Cal. Feb. 14, 2014)

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(applying Reeves’ but-for test, after Harris was decided, in a Section 6310 action). But one

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California Court of Appeal, and CACI, have applied Harris outside the context of discrimination

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claims (albeit not specifically to Section 6310 claims). See Mendoza v. Western Medical Center

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Santa Ana, 222 Cal.App 4th 1334, 1341 (2014) (citing Judicial Council Of California Civil Jury

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Instruction 2430 (wrongful discharge in violation of public policy)).

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Reasonable jurists could disagree with the court’s conclusion that a worker does not
engage in “protected activity” under Section 6310 when he or she makes complaints to a general
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contractor that is not the worker’s employer. As explained in the Summary Judgment Order, the

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court concludes that the plain meaning of Section 6310 does not permit such an interpretation.

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But while no court has yet found to the contrary, some courts have adopted a view that allows a

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complainant to recover for actions that fall outside the plain meaning of the statutory text. See,

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e.g., Lujan v. Minagar, 124 Cal. App. 4th 1041, 1044-46 (2004) (section 6310 protects employee

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from retaliation even though her actions did not meet the statute’s “literal terms”). Reasonable

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jurists might disagree about whether Complainants’ actions fall within an area outside the statute’s

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literal terms that California law nonetheless protects.
Both legal determinations are on unsettled or disputable areas of California law, and there

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are substantial grounds for a difference of opinion.

United States District Court
Northern District of California

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C.

Material Advancement of the Litigation

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“[N]either § 1292(b)’s literal text nor controlling precedent requires that the interlocutory

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appeal have a final, dispositive effect on the litigation, only that it ‘may materially advance’ the

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litigation.” Reese, 643 F.3d at 688.
“Ideally, § 1292(b) could be used to allow interlocutory appeals whenever the district court

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and court of appeals agree that immediate review is a good gamble.” Wright & Miller § 3930.

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Here, the potential benefits to resolving the disputed legal questions now outweigh the potential

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benefits of proceeding to trial now and allowing appeal later. It is possible that a jury could find

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for Plaintiff, mooting the need to resolve the dispute over the proper causation standard. But it is

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also possible that even a judgment for Plaintiff would be impacted by the court’s ruling on the

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scope of “protected activity,” since many actions Complainant Anderson seeks to challenge would

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be cut out of the case. On the other hand, practically any judgment Defendant might achieve

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would be subject to reversal if either of the two issues have been decided incorrectly.
Interlocutory appeal of these issues would materially advance the litigation.

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IV.

CONCLUSION
The court recognizes that interlocutory appeals are and must be the exception rather than

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the rule. But in this case, given that the court’s legal determinations are on unsettled and

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disputable areas of California law, that both determinations materially affect the litigation, and that
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the issues decided are of substantial public policy interest, interlocutory appeal is appropriate.
The court therefore GRANTS Plaintiff’s motion to seek interlocutory appeal of the two

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legal issues identified supra. The court also GRANTS Plaintiff’s request for a stay of trial court

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proceedings, except for the pending motion discussed infra.

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Plaintiff has filed a motion for reconsideration and clarification of two other legal issues

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decided in the Summary Judgment Order, and she has indicated she is likely to seek interlocutory

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appeal of those issues as well. Therefore, in the interest of judicial economy, the court sua sponte

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STAYS the effect of this order until 21 days after the court has issued a ruling on Plaintiff’s

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currently pending motion for reconsideration and clarification. During the 21-day period
following the court’s order on the motion for reconsideration and clarification, Plaintiff has leave

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United States District Court
Northern District of California

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to file a further request to seek interlocutory appeal, and to request that this stay be further

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extended.

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IT IS SO ORDERED.
Dated: June 10, 2014
______________________________________
JON S. TIGAR
United States District Judge

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