Sterling et al v. City of Antioch et al

Filing 40

Order by Magistrate Judge Nathanael M. Cousins DENYING DEFENDANT COUNTY OF CONTRA COSTA'S MOTION FOR CERTIFICATION UNDER 28 U.S.C. § 1292(b).(nclc2, COURT STAFF) (Filed on 9/10/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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FRANK STERLING, ROBERT BARR, and
TIMOTHY VIERRA,
Plaintiffs,

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Case No. 13-cv-00812 NC
ORDER DENYING DEFENDANT
COUNTY OF CONTRA COSTA’S
MOTION FOR CERTIFICATION
UNDER 28 U.S.C. § 1292(b)

v.
CITY OF ANTIOCH and COUNTY OF
CONTRA COSTA,

Re: Dkt. No. 29

Defendants.
Pending before the Court is the County of Contra Costa’s motion under 28 U.S.C.

17 § 1292(b) to certify for interlocutory appeal the Court’s June 14, 2013, order, which denied
18 the County’s motion to dismiss plaintiffs’ claims as time-barred based on tolling under
19 California Government Code § 945.3. Because the Court finds that the County has not met
20 its burden to show that this is an exceptional situation warranting an interlocutory appeal,
21 the County’s motion for § 1292(b) certification is DENIED.
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I. BACKGROUND
This 42 U.S.C. § 1983 case arises out of plaintiffs’ arrest on November 21, 2009, by

24 the Antioch Police Department (“APD”) and the subsequent detention of plaintiffs at the
25 Martinez Detention Facility (“MDF”), operated by the Contra Costa County Sheriff’s
26 Office. See generally Dkt. No. 1. On February 22, 2013, plaintiffs filed this suit against the
27 City of Antioch, certain APD officers, the County of Contra Costa, and unidentified
28 employees of the County. Id. The County then moved to dismiss the claims against it and
Case No. 13-cv-00812 NC
ORDER DENYING MOTION FOR
CERTIFICATION

1 its employees on statute of limitations grounds. Dkt. No. 6. On June 14, 2013, the Court
2 denied the motion, finding that plaintiffs’ claims were tolled under California Government
3 Code § 945.3 during the pendency of the criminal charges against them. Dkt. No. 28. The
4 County now moves to certify the Court’s June 14, 2013, order for interlocutory appeal
5 under 28 U.S.C. § 1292(b). Dkt. No. 29. In its motion, the County also seeks to amend that
6 order to include certification language, and requests a “limited stay of discovery as to the
7 claims against the County and its employees.” Id. Plaintiffs oppose the motion. Dkt. No.
8 32.
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II. LEGAL STANDARD

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A district court may certify for interlocutory appeal an otherwise non-appealable

11 order when: (1) the order involves a controlling question of law; (2) as to which there is
12 substantial ground for difference of opinion; and (3) an immediate appeal from the order
13 may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). A
14 question is deemed “controlling” if “resolution of the issue on appeal could materially affect
15 the outcome of litigation in the district court.” In re Cement Antitrust Litig., 673 F.2d 1020,
16 1026 (9th Cir. 1982) (citation omitted). With respect to the second factor, “[c]ourts
17 traditionally will find that a substantial ground for difference of opinion exists where ‘the
18 circuits are in dispute on the question and the court of appeals of the circuit has not spoken
19 on the point, if complicated questions arise under foreign law, or if novel and difficult
20 questions of first impression are presented.’” Couch v. Telescope Inc., 611 F.3d 629, 633
21 (9th Cir. 2010) (citation omitted). Additionally, “when novel legal issues are presented, on
22 which fair-minded jurists might reach contradictory conclusions, a novel issue may be
23 certified for interlocutory appeal without first awaiting development of contradictory
24 precedent.” Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011). As
25 to the third factor, the Ninth Circuit has held that an interlocutory appeal should not be
26 allowed if it might delay the resolution of the litigation because it could not be completed
27 before the scheduled trial date. See Shurance v. Planning Control Int’l, Inc., 839 F.2d
28 1347, 1348 (9th Cir. 1988); S.E.C. v. Sells, No. 11-cv-4941 CW, 2012 WL 4897385, at *1-2
Case No. 13-cv-00812 NC
ORDER DENYING MOTION FOR
CERTIFICATION

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1 (N.D. Cal. Oct. 15, 2012).
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Certification under § 1292(b) should be used “only in exceptional situations in which

3 allowing an interlocutory appeal would avoid protracted and expensive litigation.” In re
4 Cement Antitrust Litig., 673 F.2d at 1026 (citations omitted). The party seeking
5 certification of an interlocutory order has the burden of establishing the existence of such an
6 exceptional situation. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978).
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III. DISCUSSION

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The order the County seeks to certify for interlocutory appeal held that plaintiffs’

9 claims against the County were not barred by the applicable statute of limitations on the
10 basis that they were tolled under California Government Code § 945.3 during the pendency
11 of the criminal charges against plaintiffs. Dkt. No. 28. Although tolling issues could in
12 some circumstances be appropriate for interlocutory appeal, a consideration of the
13 § 1292(b) certification factors here shows that the County has not met its burden to show
14 that this is an exceptional situation warranting an interlocutory appeal.
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As to the first factor, plaintiffs and the County agree that the tolling issue is a

16 controlling question of law, because if the County’s position is correct and the Court’s
17 decision is reversed on appeal, plaintiffs’ claims against the County and its employees will
18 be dismissed from the lawsuit with prejudice. Dkt. Nos. 32 at 4; 33 at 3. Given the
19 significant overlap between the claims alleged against the County and the City of Antioch
20 related defendants (“the Antioch Defendants”), it is questionable whether a dismissal of the
21 County would materially affect the outcome of litigation. In any event, even if this factor
22 supports the request for certification, the County has failed to demonstrate that interlocutory
23 appeal would be appropriate considering the remaining factors.
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With respect to the second factor, the County contends that the interpretation of

25 § 945.3 and the scope of the tolling provided under the statute “are, of course, questions of
26 law,” Dkt. No. 29 at 7, and that there are substantial grounds for difference of opinion
27 because (1) there is no settled law on the issue; and (2) because there is a split of authority.
28 Dkt. No. 33 at 3-4. As the Court’s June 14, 2013, order makes clear, in ruling that tolling
Case No. 13-cv-00812 NC
ORDER DENYING MOTION FOR
CERTIFICATION

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1 applied, the Court concluded that the present action against the County and its employees
2 alleged a sufficient relationship between the claimed § 1983 violations and the criminal
3 charges at the pleading stage. Dkt. No. 28 at 9. The County’s arguments in support of
4 § 1292(b) certification fail to take into account the importance of the legal standard and the
5 procedural posture of the case to the Court’s decision on the tolling issue.
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The issue addressed by the Court was whether the present civil action against the

7 County and its employees was “based upon conduct of the [County’s employees] relating to
8 the offense” for which plaintiffs were charged in the criminal complaint, “including an act
9 or omission in investigating or reporting the offense or arresting or detaining the accused.”
10 Cal. Gov. Code § 945.3. Dkt. No. 28 at 6. Plaintiffs were criminally charged with resisting
11 a peace officer and battery with injury upon a peace officer during their arrest by the APD.
12 Dkt. Nos. 1 ¶ 83; 7 at 2:4-5. Plaintiffs’ claims against the County in this action are based
13 upon the alleged battery of plaintiffs by County employees during plaintiffs’ detention at
14 the MDF following their arrest by the APD. Dkt. No. 1 ¶¶ 21, 50-68, 118-20. The alleged
15 battery occurred on the same day as the violent interaction between plaintiffs and the APD,
16 and was in connection with, and as a result of, plaintiffs’ arrest by the APD. Id. ¶¶ 34, 46,
17 50, 63. Moreover, the complaint alleges that the use of excessive force by the County
18 employees was instigated and facilitated by the APD in telling the receiving County
19 deputies that plaintiffs had assaulted and battered the arresting APD officers during
20 plaintiffs’ arrest, which is the same conduct for which plaintiffs were charged criminally.
21 Id. ¶¶ 51-65, 83, 118. Construing the material fact allegations in the light most favorable to
22 plaintiffs, the Court found that plaintiffs alleged a sufficient degree of interrelatedness and
23 factual overlap between the criminal charges and the claims against the County to survive a
24 motion to dismiss pursuant to § 945.3 tolling. Dkt. No. 28 at 11. Because the Court’s
25 decision turns to a large extent on the specific factual circumstances alleged in this case and
26 the factual record is not yet developed, the Court finds that, at this stage, the tolling issue
27 does not present the type of “novel legal issue” that would be appropriate for interlocutory
28 appeal.
Case No. 13-cv-00812 NC
ORDER DENYING MOTION FOR
CERTIFICATION

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The County’s argument that there is a split of authority on the tolling issue between

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2 this Court and one unpublished California Court of Appeal case fails for similar reasons.
3 The County contends that the facts and legal issue in Lincoln v. County of San Bernardino,
4 Super. Ct. No. RCV094494, 2010 WL 619747 (Cal. Ct. App. Feb. 23, 2010) (unpublished),
5 “are virtually identical to the facts and legal issue here” but that the court there found that
6 § 945.3 “does not apply where the civil action is unrelated to the criminal charges.” Dkt.
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7 No. 33 at 4-5. Assuming that this unpublished decision could demonstrate the requisite

8 “substantial” ground for disagreement as to the controlling law, the County overlooks that
9 the Lincoln decision arose from a motion for summary judgment:
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Lincoln insists there are disputed facts about whether-because the criminal
proceedings were pending from February 10, 2004, until March 1, 2006-his
detention by the County defendants was related to the criminal charges
involving the CHP officers. But merely saying so does not make it true. In his
deposition, Lincoln distinguishes between the separate conduct by the CHP
officers and the County defendants. Nothing in the record demonstrates that
the criminal charges against Lincoln, based on his offenses against the CHP
officers, are factually related to what happened later between the County
defendants and Lincoln when he was in jail. Because there are no disputed
material facts, we determine as a matter of law that Lincoln’s complaint
against the County defendants was time-barred.

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16 Lincoln, 2010 WL 619747, at *3 (emphasis added). Unlike the Lincoln case, the Court here
17 was presented with a motion to dismiss and thus was required to accept as true the
18 allegations of a factual relationship between the criminal charges against plaintiffs and the
19 § 1983 claims against the County. Accordingly, Lincoln does not demonstrate a split of
20 authority and the County has failed to establish a substantial ground for difference of
21 opinion.
Finally, with respect to the third factor, the Court is not persuaded by the County’s

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23 argument that an immediate appeal from the order would materially advance the ultimate
24 termination of the litigation because the case involves two “distinct” sets of claims. Dkt.
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The County requested judicial notice of the complaint in the Lincoln case, “and the allegations
therein,” as well as the minute order of the Superior Court of the County of San Bernardino
granting summary judgment, “and the findings therein,” pursuant to Federal Rule of Evidence 201.
Dkt. No. 34. The request is granted as to the existence of the documents but not as to the truth of
their contents. See Fed. R. Evid. 201(b); Lee v. City of Los Angeles, 250 F.3d 668, 688-90 (9th Cir.
2001).
Case No. 13-cv-00812 NC
ORDER DENYING MOTION FOR
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CERTIFICATION

1 No. 29 at 11-12. The County’s assertion that “[t]here can be no dispute that the claims
2 against the Antioch Defendants and the claims against the County are distinct” ignores the
3 allegations of the complaint and the factual overlap between plaintiffs’ arrest and
4 subsequent detention, including the identity of the persons involved in those events, and the
5 communications and interactions between the APD officers and County employees. Dkt.
6 No. 33 at 7. Furthermore, plaintiffs’ opposition argues that resolution of the tolling issue on
7 appeal will not appreciably shorten the time, effort, or expense of conducting the lawsuit
8 because regardless of whether the County and its employees are defendants in this case,
9 plaintiffs will propound written discovery on the County, and depose the involved Sheriff’s
10 deputies, Sheriff’s investigators and any witnesses to plaintiffs’ assault at the MDF so as to
11 gather all probative evidence in support of plaintiffs’ excessive force claims. Dkt. No. 32 at
12 7. Plaintiffs also intend to try their excessive force claims in connection with the assaults at
13 the MDF even if the County defendants are dismissed from this lawsuit. Id. at 8. The
14 Antioch Defendants also take the position that plaintiffs’ claims against the County and the
15 Antioch Defendants are “intertwined and overlap in significant regards” because plaintiffs’
16 allegations against the County “flow directly from his [sic] allegations against the Antioch
17 Defendants” and “the extent to which Plaintiffs were injured at the hands of the Antioch
18 Defendants and/or the County Defendants are directly at issue in this case, making them
19 inextricably intertwined.” Dkt. No. 39 at 2-3. The Antioch Defendants argue that if an
20 interlocutory appeal is allowed to go forward and the litigation is stayed as requested by the
21 County, the entire matter should be stayed for all purposes against all defendants because
22 there is a significant risk of having to perform the same or similar discovery twice if the
23 County’s appeal is later denied. Id.
In conclusion, even if the County is correct that if the County and its employees were

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25 not parties, any trial would be shorter and discovery would be streamlined, it has not met its
26 burden to show that any advancement of the ultimate termination of this litigation would be
27 material and would justify delaying the litigation. Dkt. No. 33 at 7.
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Case No. 13-cv-00812 NC
ORDER DENYING MOTION FOR
CERTIFICATION

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IV. CONCLUS ION
C

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Th County’s motion fo an order certifying th June 14, 2013, orde Dkt. No. 28, for
he
s
or
c
he
er,

utory appea and its re
al,
elated reque to amen the order to include certifying
ests
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e
3 interlocu
e
ED.
4 language, and for a stay of the litigation, are DENIE

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IT IS SO OR
T
RDERED.

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Date: Septem
mber 10, 201
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____
__________
__________
_____
Nath
hanael M. C
Cousins
Unit States M
ted
Magistrate J
Judge

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Case No. 13-cv-00812 NC
ORDER DENYING MOTION FOR
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G
F
CERTIF
FICATION

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