Fenters et al v. Yosemite Chevron et al, No. 1:2005cv01630 - Document 251 (E.D. Cal. 2011)

Court Description: ORDER DENYING Defendants' 248 Exparte Application to Shorten Time for Hearing on and DENIAL of Defendants' 245 Motion for Certification of Order For Appeal Pursuant to 28 U.S.C. § 1292(b), signed by Judge Oliver W. Wanger on 4/5/2011. (Gaumnitz, R)
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Fenters et al v. Yosemite Chevron et al Doc. 251 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 TIFFANY FENTERS, DEBRA FENTERS, ) and VIRGIL FENTERS, ) ) Plaintiffs, ) ) v. ) ) YOSEMITE CHEVRON; ABBCO ) INVESTMENTS, LLC, et al., ) ) Defendants. ) ) ) 1:05-cv-1630 OWW ORDER DENYING DEFENDANTS’ EX PARTE APPLICATION TO SHORTEN TIME FOR HEARING ON AND DENIAL OF DEFENDANTS’ MOTION FOR CERTIFICATION OF ORDER FOR APPEAL PURSUANT TO 28 U.S.C. § 1292(b) 16 17 Defendants, Yosemite Chevron, Abbco Investments, LLC and 18 Robert Abbate (“Defendants”) seek an ex parte application for 19 order shortening time to hear their motion to certify for 20 immediate appeal the Court’s December 30, 2010 Order Denying 21 Summary Judgment pursuant to 28 U.S.C. § 1292(b). 22 argument is necessary and the matter is submitted for decision. No oral 23 This case, brought by Tiffany Fenters, a former employee of 24 the Abbate Defendants, alleges claims for violation of her civil 25 rights and other damages arising from the alleged wrongful 26 termination of her employment, abusive employment practices, and 27 accusations of criminal wrongdoing against her made by the Abbate 28 Defendants, leading to a criminal prosecution of Fenters, which 1 Dockets.Justia.com 1 resulted in her acquittal. 2 Defendants have suggested that the denial of their summary 3 judgment motion was erroneous based on their contention that as 4 private parties they could not have conspired or acted in concert 5 with public officials and other state actors in the Merced County 6 District Attorney’s Office and related law enforcement agencies. 7 8 9 A. Required Legal Standard. Defendants seek certification of the Court’s decision 10 granting in part and denying in part Defendants’ Motion for 11 Summary Judgment, an interlocutory order from which no appeal is 12 available until the entry of final judgment following trial on 13 the merits. 14 524, 529 (9th Cir. 1991). 15 interlocutory appeal requires that a district court find and 16 certify that its order: 1) involves a controlling question of 17 law; 2) as to which there is substantial ground for difference of 18 opinion; and 3) an immediate appeal may materially advance 19 ultimate termination of the litigation. 20 Hopkins v. City of Sierra Vista, Ariz., 931 F.2d The standard for a permissive In the Ninth Circuit, § 1292(b) is to be applied sparingly 21 and only in exceptional cases. The “controlling question of law” 22 requirement must be interpreted in such a way as to implement 23 this policy. 24 1027 (9th Cir. 1982); Davis Moreno Construction, Inc. v. Frontier 25 Steel Buildings Corp., 2011 WL 347127 (E.D. Cal. Feb. 2, 2011). 26 A party seeking interlocutory review “has the burden of 27 persuading the Court of Appeals that exceptional circumstances 28 justify a departure from the basic policy of postponing appellate In re Cement Antitrust Litigation, 673 F.2d 1020, 2 1 review until after the entry of a final judgment.” Coopers & 2 Lybrand v. Livisay, 437 U.S. 463, 475 (1978). 3 certify a question of law is high and a district court generally 4 should not permit such an appeal where “it would prolong 5 litigation rather than advance its resolution.” 6 Am. Multi Cinema, Inc., 694 F.Supp. 725, 729 (M.D. Cal. 1988). 7 In applying these standards, the trial court must weigh the 8 asserted need for the proposed interlocutory appeal with the 9 policy in the ordinary case of discouraging piecemeal appeals. The standard to Syufy Enter. v. 10 Association of Irritated Residents v. Fred Schakel Dairy, 634 11 F.Supp.2d 1081, 1087 (E.D. Cal. 2008). 12 To establish a “substantial ground for difference of 13 opinion,” a showing that there is a dearth of case law, or that 14 the issue is a question of first impression is insufficient. 15 Davis Moreno, 2011 WL 347127 at **2-3. 16 consider: 1) if there are other claims (even ones of state law) 17 for which trial would nonetheless be required; 2) whether trial 18 is imminent; 3) whether the trial promises to be lengthy or 19 complex; and 4) how long the litigation has been pending. 20 **3-4. 21 The Court should also This case has been pending since 2005. Id. at It is now 22 approximately six years old. The summary judgment ruling now 23 sought to be appealed was entered December 30, 2010. 24 motion filed 78 days later seeks to avoid an imminent June 14, 25 2011 trial date, previously scheduled with the agreement of the 26 parties in January 2011. 27 certification. 28 357 (E.D. N.Y. 2000) (denying certification motion two and one- The present This delay alone is sufficient to deny Falise v. American Tobacco Co., 94 F.Supp.2d 316, 3 1 half months before the scheduled trial and holding, “[T]o delay 2 proceedings for appellate review on the eve of trial would not 3 advance the ends of justice, and would unnecessarily burden both 4 this Court and the Court of Appeals.”). The party seeking 5 certification must act with “diligence.” Jiddes Richard 6 Electronics, Ltd. v. Panache Broadcasting of Pennsylvania, Inc., 7 202 F.3d 957, 958-59 (7th Cir. 2000) (two month delay in filing 8 for certification was untimely); Weir v. Propst, 915 F.2d 283, 9 285-87 (7th Cir. 1990) (sixty-three days between interlocutory 10 order and certification motion justified denial on the grounds of 11 lack of timeliness); see also Jiddes v. Glenn Falls Ins. Co., 12 2003 WL 23486911, *1 (M.D. Fla. 2003). 13 There are other claims advanced by Plaintiff. The trial 14 will not be lengthy (approximately eight days). The trial will 15 not be complex as the issues turn almost entirely on the 16 credibility of witnesses. 17 untimely, and simply seeks to avoid trial in this case. 18 lack of diligence justifies denial of a motion. The motion lacks diligence, is This 19 20 21 B. Merits of the Motion. Arguendo, the Defendants argue that a claim cannot be 22 maintained under the Civil Rights Act, 42 U.S.C. § 1983 solely 23 against a private actor. 24 pages 57-75 of the underlying decision denying summary judgment. 25 Under the authority of Arnold v. IBM Corp., 637 F.2d 1350, 1356- 26 57 (9th Cir. 1981), a civil rights plaintiff can establish the 27 requisite causation between the conduct of private persons and a 28 violation of § 1983 by proving that private individuals exercise The Court has addressed the issue on 4 1 control over the decision-making state law enforcement in an 2 investigation. 3 Fox, 312 F.3d 423, 445-446. 4 dismissal of governmental co-defendants ends the ability to 5 maintain the claim against the private defendants is belied by 6 the Arnold case, 637 F.2d at 1352, where the plaintiff did not 7 sue any governmental defendants. 8 9 (Cited with approval and followed in Franklin v. Defendants’ argument that the Defendant Abbate, an individual, actively participated in the District Attorney’s investigation working with the team 10 assigned to the Fenters’ criminal investigation and prosecution. 11 District Attorney Investigator Hutton acknowledged that Defendant 12 Abbate assisted the District Attorney’s investigation in the 13 Fenters’ matter between May 14 and June 4, 2003. 14 Abbate acknowledged he assisted with the investigation and had 15 his most extensive contacts with Investigator Hutton during the 16 District Attorney’s investigative phase of the criminal case. 17 Defendant Investigator Hutton testified about an interview protocol 18 set up between Defendant Abbate and Hutton to conduct the June 4, 19 2003 interview of a co-employee of Fenters. 20 the June 4, 2003 interview with his employee, Acevas. 21 himself conducted the first part of the District Attorney’s 22 interview, in conformity with guidelines provided by Investigator 23 Hutton. 24 financial analysis to assist the District Attorney. 25 Hutton spent approximately 20 hours working on the Fenters case. 26 Defendant Abbate worked 35 hours on the investigation, not 27 including time he spent assisting Hutton in interviews of 28 witnesses. Abbate also set up Abbate Abbate also provided an additional eight months of 5 Investigator 1 Mr. Bassarini, lead prosecutor at the preliminary hearing 2 and trial of the case against Fenters, had frequent contact with 3 Defendant Abbate as did Investigator Hutton, to prepare for the 4 preliminary hearing and present the trial. 5 involvement and participation coupled with the alleged motive of 6 Abbate as employer and owner of the service station, Yosemite 7 Chevron, where Plaintiff was employed, to avoid sexual harassment 8 charges and allegations of other deprivations of Plaintiffs’ 9 employment interests present disputed issues of material fact 10 whether they were joint participants in a concerted action to 11 violate Plaintiffs’ constitutional rights and had some control 12 over the state officials’ decision, that cannot be resolved as a 13 matter of law. 14 prosecution which he aided by diverting Fenter’s pursuit of her 15 claims and his efforts to discredit her. 16 This extensive Abbate also benefitted from the criminal The Abbate Defendants raise an argument not presented in 17 their Summary Judgment Motion and not addressed by the Court’s 18 Memorandum Decision concerning a malicious prosecution claim 19 under § 1983. 20 waived for failure to raise it in the District Court. 21 Brooks, Inc. v. City of Los Angeles, 631 F.3d 1031, 1044 (9th 22 Cir. 2011). 23 An issue not raised in the trial court has been Alameida Plaintiff’s First Amended Complaint alleged that the Abbate 24 Defendants initiated their actions to cause her to be falsely 25 prosecuted as a “preemptive strike” to defeat her from 26 successfully pursuing any remedies for violation of her rights in 27 the work place. 28 was no probable cause for her prosecution, that it was meritless, ¶ 23, Doc. 66, p. 8-9. 6 Plaintiff alleges there 1 and Defendants pursued it for the improper motive of attempting 2 to defeat Plaintiff’s claims. 3 challenge this claim by their prior motion to dismiss the First 4 Amended Complaint nor in Abbate Defendants’ Summary Judgment 5 Motion. 6 Court precedent, a prosecution instituted without probable cause 7 and intended to discourage a plaintiff from seeking redress for 8 grievances violates the Fourth and First Amendments to the United 9 States Constitution. The Abbate Defendants’ did not See Docs. No. 78, 131. Under applicable U.S. Supreme Hartman v. Moore, 547 U.S. 250, 256, 261-62 10 (2006); Beck v. City of Upland, 527 F.3d 853, 864-67, 871 (9th 11 Cir. 2008). 12 support their argument that the law is unsettled, pre-date these 13 Supreme Court and Ninth Circuit more recent cases. The Abbates’ citations of legal authority, to 14 The last argument raised by the Abbate Defendants is that it 15 was error to find a genuine issue of material fact whether or not 16 the Abbate Defendants’ conduct amounted to a “threat by means of 17 force, intimidation and coercion” under Federal and/or State law. 18 This is no more than a re-argument and disagreement with the 19 Court’s prior review of applicable case law that the Defendants’ 20 conduct is sufficient to meet the threats of force, intimidation 21 and coercion requirement of the law. 22 23 24 CONCLUSION For all the reasons stated above, because the trial date is 25 imminent, there is no just cause for Defendants’ lack of 26 diligence. 27 case to prevent a trial, there is no just reason to certify this 28 case for interlocutory appeal. Because Defendants seek an appeal from the entire There is nothing exceptional 7 1 about the circumstances of this case. Defendants’ Motion for 2 Certification of Order for Appeal Pursuant to 28 U.S.C. § 1292(b) 3 is DENIED. 4 5 IT IS SO ORDERED. 6 April 5, 2011. 7 /s/ Oliver W. Wanger Oliver W. Wanger UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8