Reason v. City of Richmond

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- ERIC REASON, an individual; No. 2:20-cv-01900 WBS JDP STEPHANIE BASS, an individual; RASHEED REASON, individually and as Co-Successor-in-Interest to Decedent ERIC REASON II; TYRIQUE ORDER DENYING MOTION FOR REASON, individually and as Co- INTERLOCUTORY APPEAL1 Successor-in-Interest to Decedent ERIC REASON II; K.R., individually and as Co- Successor-in-Interest to Decedent ERIC REASON II, by and through his Guardian Ad litem LATISHA PARKER; P.R., individually and as Co- Successor-in-Interest to Decedent ERIC REASON II, by and through his Guardian Ad Litem LATISHA PARKER; N.M., individually and as Co- Successor-in-Interest to Decedent ERIC REASON II, by and through his Guardian Ad Litem NIA MILLS; E.L.R., individually and as Co-Successor-in-Interest to Decedent ERIC REASON II, by and through his Guardian Ad Litem SHAWNTAY DAVIS; I.R.V., individually and as Co- Successor-in-Interest to The court takes this motion under submission on the papers, without oral argument, pursuant to Local Rule 230(g).

1 Decedent ERIC REASON II, by and through his Guardian Ad Litem JULIA VELASQUEZ; 3 Plaintiffs, 4 v. CITY OF RICHMOND, a municipal corporation, and the ESTATE OF VIRGIL THOMAS, individually and in his capacity as Police Sergeant for the CITY OF RICHMOND, Defendants.

----oo0oo---- 12 Defendant City of Richmond (the “City”) moves for certification of the court’s May 24, 2023 Order denying the City’s motion for summary judgment (Docket No. 72) for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).2 (Docket No. 73.)

17 The Ninth Circuit has held that § 1292(b) “is to be used only in extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation.” U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). It is “not intended merely to provide review of difficult rulings in hard cases.” Id. The party seeking to appeal therefore has the burden of justifying a departure from the basic policy of postponing appellate review until after the 25 2 Under 28 U.S.C. § 1292(b), a district court may certify for appeal an interlocutory order which is not otherwise appealable if the district court is “of the opinion that such order [1] involves a controlling question of law as to which [2] there is substantial ground for difference of opinion and that [3] an immediate appeal from the order may materially advance the ultimate outcome of the litigation.” 28 U.S.C. § 1292(b). eee mR OI IERIE REI III IRIE IE IG OSE OD EE entry of a final judgment. In re Cement Antitrust Litig., 673 2] F.2d 1020, 1026 (9th Cir. 1982).

3 For the reasons discussed in the court’s May 24, 2023 Order, the court finds that the 28 U.S.C. § 1292(b) factors are | not met. There is substantial ground for a difference of opinion in most seriously contested summary judgment motions. This case is no exception. The California Supreme Court has repeatedly articulated that whether an employee acted within the scope of employment “is ordinarily a question of fact.” See, e.g., John 10 R. v. Oakland Unified Sch. Dist., 48 Cal. 3d 438, 447 (1989); 11 Mary M. v. City of L.A., 54 Cal. 3d 202, 213 (1991) (citation 12 omitted) .

13 The inquiry “becomes a question of law .. . when ‘the 14 facts are undisputed and no conflicting inferences are | possible.’” Mary M., 54 Cal. 3d at 213 (quoting Perez v. Van 16 Groningen & Sons, Inc., 41 Cal. 3d 962, 968 (1986)). Here, as 17 the court explained in its May 24, 2023 Order, there are disputed 18 questions of fact, as well as conflicting inferences which may be 19 drawn, on the issue of whether Sergeant Thomas was acting within 20 the scope of his employment when he shot and killed Mr. Reason.

21 IT IS THEREFORE ORDERED that the City’s motion for 22 certification of this court’s May 24, 2023 Order (Docket No. 72) 23 for interlocutory appeal be, and the same hereby is, DENIED.

24 | Dated: June 14, 2023 be td, : 4k.

25 WILLIAM B. SHUBB 26 UNITED STATES DISTRICT JUDGE