Wishnev v. The Northwestern Mutual Life Insurance Company
Filing
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ORDER by Judge Edward M. Chen Granting 36 Defendant's Motion for Certification of Interlocutory Appeal and for Stay in Part Pending Appeal.(emcsec, COURT STAFF) (Filed on 3/28/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SANFORD J WISHNEV,
Plaintiff,
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Case No. 15-cv-03797-EMC
v.
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY,
ORDER GRANTING DEFENDANT’S
MOTION FOR CERTIFICATION OF
INTERLOCUTORY APPEAL AND FOR
STAY IN PART PENDING APPEAL
Docket No. 36
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For the Northern District of California
United States District Court
Defendant.
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Defendant‟s motion for certification of interlocutory appeal came for hearing before the
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Court on March 25, 2015. Docket No. 35. On February 19, 2016, the Court held that Article XV
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of the California Constitution did not repeal the California Civil Code section 1916-2‟s
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requirement for the lender to obtain a signed agreement from the borrower in order to charge
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compound interest. Docket No. 35 at 19. Defendant asks the Court to certify the issue as to
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whether incorporated admitted insurers are exempt from the compound interest provision of Cal.
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Civ. Code § 1916-2. For the following reasons and for the reasons stated on the record at the
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hearing, the Court GRANTS Defendant‟s motion for certification of interlocutory appeal and for
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stay in part.
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Generally, the United States Courts of Appeals have jurisdiction over appeals from “final
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decisions of the district courts.” See 28 U.S.C. § 1291. However, this Court may grant
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certification of an order for interlocutory appeal where the order (1) “involves a controlling
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question of law” (2) “as to which there is a substantial ground for difference of opinion” and (3)
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“an immediate appeal from the order may materially advance the ultimate termination of the
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litigation.” See 28 U.S.C. § 1292(b); see also In re Cement Antitrust, 673 F.2d 1020, 1025-26 (9th
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Cir. 1982) (en banc). Section 1292(b) certifications should be “applied sparingly and only in
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exceptional cases.” United States v. Woodbury, 263 F.2d 784, 788 n.11 (9th Cir.1959).
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Here, all three requirements for certifying an interlocutory appeal are satisfied. “[A]ll that
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must be shown in order for a question [of law] to be „controlling‟ is that resolution of the issue on
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appeal could materially affect the outcome of litigation in the district court.” Astiana v. Dreyer’s
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Grand Ice Cream, Inc., No. C-11-2910 EMC, 2012 WL 4892391, at *1 (N.D. Cal. Oct. 12, 2012)
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(quoting In re Cement Antitrust, 673 F.2d at 1026). The first and third 1292(b) factors are
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satisfied – an interlocutory appeal would be on a “controlling question of law” that will
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“materially advance the ultimate termination of the litigation.” See Reese v. BP Exploration
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(Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011) (holding that an interlocutory appeal is
Cement Antitrust, 673 F.2d at 1025-26 (suggesting that a question of law is “controlling” where,
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For the Northern District of California
appropriate where a reversal will remove the entire claim from the litigation); see also In re
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United States District Court
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as here, the order under review would constitute “reversible error on final appeal”). This Court‟s
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determination that California Civil Code § 1916-2 applies to Northwestern Mutual represents a
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pure question of law that, if reversed, would be outcome determinative of Plaintiff‟s § 1916-2
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claim. The second 1292(b) factor (“substantial ground for difference of opinion”) is also met.
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While the Ninth Circuit has not addressed the question, there is a split of authority within this
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Court on the pure legal question Defendant seeks to appeal, and the question is one of first
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impression in the Ninth Circuit. See Washburn v. Prudential Ins. Co. of Am., No. 15-CV-04009-
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SI, 2015 WL 7454039, at *5 (N.D. Cal. Nov. 24, 2015) (finding that admitted incorporated
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insurers are exempt from the restrictions on the charging of compound interest of California Civil
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Code § 1916-2).
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The Court also concludes that proceedings in this case should be stayed in part until the
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Ninth Circuit decides whether or not to hear this appeal. A district court may stay a case pending
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interlocutory appeal. 28 U.S.C. § 1292(b). “A district court has inherent power to control the
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disposition of the causes on its docket in a manner which will promote economy of time and effort
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for itself, for counsel, and for litigants.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962).
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See Rollins v. Dignity Health, No. 13-CV-01450-TEH, 2014 WL 6693891, at *5 (N.D. Cal. Nov.
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26, 2014). Pending the Ninth Circuit‟s action on this Court‟s certification of the interlocutory
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appeal, the parties shall complete initial disclosures and comply with the document request that
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has already been promulgated, but shall otherwise take no other action until further order of this
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Court.
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A Case Management Conference shall be scheduled for 10:30 a.m., June 2, 2016.
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This order disposes of Docket No. 36.
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IT IS SO ORDERED.
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______________________________________
EDWARD M. CHEN
United States District Judge
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For the Northern District of California
United States District Court
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Dated: March 28, 2016
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