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Case 5:18-cv-02185-JGB-SHK Document 48 Filed 04/15/19 Page 1 of 15 Page ID #:333

1
Thomas J. Eastmond – State Bar No. 211591
Ryan S. Riddles – State Bar No. 298745
2 GOE & FORSYTHE, LLP
3 18101 Von Karman Avenue, Suite 1200
Irvine, CA 92612
4 teastmond@goeforlaw.com
5 rriddles@goeforlaw.com
Telephone: (949) 798-2460
6 Facsimile: (949) 955-9437
7
Counsel for Riley’s American
8 Heritage Farms and James Patrick Riley
9
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION
12
13 RILEY’S AMERICAN HERITAGE Case No. 5:18-cv-02185 JGB (SHKx)
FARMS, a California corporation;
14
JAMES PATRICK RILEY, an
15 individual, OPPOSITION TO DEFENDANTS’
Plaintiffs, MOTION TO CERTIFY FOR
16
INTERLOCUTORY APPEAL THE
17 v. ORDER GRANTING IN PART AND
JAMES ELSASSER, an individual; DENYING IN PART DEFENDANTS’
18
STEVEN LLANUSA, an individual; MOTION TO DISMISS PLAINTIFFS’
19 HILARY LACONTE, an individual; COMPLAINT
20
BETH BINGHAM, an individual;
NANCY TRESER OSGOOD, an
21 individual; DAVID S. NEMER, an
22 individual; ANN O’CONNOR, an
individual; and BRENDA HAMLETT,
23 an individual,
24 Defendants.
25
26
27 Plaintiffs Riley’s American Heritage Farms, a California corporation doing
28 business as “Colonial Chesterfield at Riley’s Farm” and “Riley’s Farm” (“Riley’s

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1 Farm” or “the Farm”), and James Patrick Riley, an individual (“Mr. Riley”;
2 collectively, “Plaintiffs”) hereby oppose Defendants’ motion to certify (“Motion to
3 Certify) the Court’s denial and grant in part (the “Order”) of Defendants’ Motion to
4 Dismiss.
5 I. INTRODUCTION
6 An interlocutory appeal under 28 U.S.C. § 1292 is an extraordinary
7 procedure, appropriate only in “exceptional” cases that courts have called,
8 colorfully, “hen’s teeth rare.” This case has a regular old beak. Contrary to the
9 Motion to Certify, there are no grounds for difference of opinion on the basic
10 questions of First Amendment law that are at issue here. The issues discussed in
11 the Motion to Dismiss are all mixed issues of law and fact (as to which Section
12 1292 does not permit interlocutory review). Nor would an immediate appeal of
13 the denial (in part) of the Motion to Dismiss materially advance the termination of
14 the litigation. On the contrary, it would (under the most likely scenarios) extend
15 the litigation, likely yielding not one appeal but two.
16 II. ARGUMENT
17 A. Legal Standard
18 Under the final judgment rule embodied in 28 U.S.C. § 1291, the courts of
19 appeal have jurisdiction over “appeals from all final decisions of the district courts
20 of the United States.” Thus, as a general rule, parties may appeal only from orders
21 which ‘end [ ] the litigation on the merits and leave[ ] nothing for the court to do
22 but execute the judgment.’ (Couch v. Telescope Inc., 611 F.3d 629 (9th Cir. 2010),
23 quoting Romoland Sch. Dist. v. Inland Empire Energy Ctr., 548 F.3d 738, 747 (9th
24 Cir. 2008).)
25 The Interlocutory Appeals Act, 28 USC § 1292(b) provides a limited
26 exception to the final judgment rule. It authorizes district courts to certify an order
27 for interlocutory appeal if: (1) the “order involves a controlling question of law;”
28 (2) there is “substantial ground for difference of opinion;” and (3) “an immediate

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1 appeal from the order may materially advance the ultimate termination of the
2 litigation.” (In re Cement Antitrust Litig., 673 F2d 1020, 1026 (9th Cir 1982), aff'd
3 sub nom Arizona v. Ash Grove Cement Co., 459 US 1190, 103 S. Ct. 1172,
4 (1983).) Even when all three statutory criteria are satisfied, district court judges
5 have “unfettered discretion” to deny certification. (Ryan, Beck & Co., LLC v.
6 Fakih, 275 F Supp.2d 393, 396 (EDNY 2003); see also Executive Software N. Am.,
7 Inc. v. United States Dist. Ct. for the Cent. Dist. of Cal., 24 F3d 1545, 1550 (9th
8 Cir 1994) [stating that a district court's certification decision is “unreviewable”].
9 B. Departures From The Final Judgment Rule Are Extremely Rare.
10 “Section 1292(b) is meant to be used sparingly, and appeals under it are,
11 accordingly, hen's teeth rare.” (Semeneck v. Ahlin, 2010 U.S. Dist. LEXIS 68621,
12 2010 WL 2510996 *2 (E.D. Cal. 2010), quoting Camacho v. Puerto Rico Ports
13 Authority, 369 F.3d 570, 573 (1st Cir. 2004).) The Ninth Circuit has cautioned that
14 § 1292(b) “is to be applied sparingly and only in exceptional circumstances.”
15 (United States v. Woodbury, 263 F.2d 784, 788 n.11 (9th Cir 1959).) The
16 legislative history makes clear that § 1292(b) is reserved for “extraordinary cases
17 where decision of an interlocutory appeal might avoid protracted and expensive
18 litigation,” such as “antitrust and similar protracted cases.” (United States Rubber
19 Co. v. Wright, 359 F.2d 784, 785 (9th Cir 1966), quoting S Rep No 2434 (1958),
20 reprinted in 1958 USCCAN 5255, 5260.) As the Ninth Circuit has explained, the
21 statute “was not intended merely to provide review of difficult rulings in hard
22 cases.” (Id.) “Routine resort to § 1292(b) requests would hardly comport with
23 Congress’ design to reserve interlocutory review for ‘exceptional’ cases while
24 generally retaining for the federal courts a firm final judgment rule.” (Caterpillar,
25 Inc. v. Lewis, 519 US 61, 74, 117 S. Ct. 467, 136 L. Ed. 2d 437 (1996).)
26 Interlocutory appeals are limited to “rare circumstances” because it is a “departure
27 from the normal rule that only final judgments are appealable.” (James v. Price
28 Stern Sloan, Inc., 283 F3d 1064, 1067 n.6 (9th Cir 2002).)

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1 C. The Issues Identified in the Motion to Certify Are Not “Pure Issues
2 of Law.”
3 A ‘question of law’ is ‘controlling’ under § 1292(b) if resolving it on appeal
4 could materially affect the outcome of litigation in the district court. (In re Cement
5 Antitrust Litig., supra, 673 F.2d at 1026.) A “question of law” means a “pure
6 question of law,” not a mixed question of law and fact or an application of law to a
7 particular set of facts. (Brizzee v. Fred Meyer Stores, Inc., No. CV-04-1566-ST,
8 2007 U.S. Dist. LEXIS 99155 at *11 (D. Or. Dec. 10, 2007).)
9 In their brief discussion of the “controlling issue of law” issue, Defendants
10 reason that a FRCP 12(b)(6) motion rules on the sufficiency of a pleading as a
11 matter of law; ergo, the denial of a 12(b)(6) motion is automatically a “pure
12 question of law.” (Motion to Certify, p. 8, line 24 – p. 9, line 6.) However, that
13 general concept of a “question of law” is not the one applied in Section 1292(b)
14 analysis. In the context of Section 1292(b), “a ‘question of law’ means an abstract
15 legal issue rather than an issue of whether [for example] summary judgment should
16 be granted.” (Ahrenholz v. Bd. of Trs., 219 F.3d 674, 677 (7th Cir. 2000).) In
17 Ahrehnholz, the 7th Circuit Court of Appeals held that although, “formally, an
18 appeal from the grant or denial of summary judgment presents a question of law,” 1
19 the phrase “question of law” as used in Section 1292(b) “was not intended to make
20 denials of summary judgment routinely appealable.” (Id. at 676.) Instead,
21 “‘question of law’ as used in section 1292(b) has reference to a question of the
22 meaning of a statutory or constitutional provision, regulation, or common law
23 doctrine.” (Id.) It refers “to a ‘pure’ question of law rather than merely to an issue
24 that might be free from a factual contest.” (Id. at 676-677.)
25
26
27 1
Under Rule 56 of the Federal Rules, summary judgment may be granted when,
28
after it is shown there is no genuine dispute as to any material fact, the movant is
entitled to judgment “as a matter of law.”
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1 Similarly, in Picard v. Estate of Madoff, 464 B.R. 578 (S.D.N.Y. 2011), the
2 court held that (rejecting a similar argument to the one Defendants make) the legal
3 sufficiency of a pleading challenged on a motion to dismiss was not a “question of
4 law” for purposes of Section 1292(b). (Id. at 584.) Because the issue was not a
5 “pure question of law,” but rather the application of the law to the case-specific
6 facts alleged in the plaintiff’s pleading, it was not suitable for interlocutory appeal.
7 (Id.) The court went on to note that “appeals challenging pre-trial rulings
8 upholding pleadings against demurrer only stimulate the parties to more and
9 greater pre-trial sparring apart from the merits... [A] reversal at most could lead
10 only to a remand for repleading, with possibilities of further interlocutory appeals
11 thereafter.) (Id. [quoting Gottesman v. Gen. Motors Corp., 268 F.2d 194, 196 (2d
12 Cir. 1959).)
13 The three subjects as to which the Motion to Certify argues there are
14 substantial grounds for difference of opinion (i.e., (1) whether Defendants’
15 withholding their patronage from Riley’s Farm is a sufficient deprivation to trigger
16 First Amendment scrutiny; (2) whether Defendants “engaged in protected speech
17 of their own” by excluding Riley’s Farm from field-trip eligibility based on an
18 owner’s private comments; and (3) whether a Pickering interest-balancing
19 analysis2 ought to be applied) are all fact-intensive questions – not pure, abstract
20 questions of law, as that phrase is used in the context of Section 1292(b). They all
21 go beyond the basic question of “the meaning of a statutory or constitutional
22 provision, regulation, or common law doctrine” (see Ahrenholz v. Bd. of Trs.,
23 supra, 219 F.3d at 676) into “a mixed question of law and fact or an application of
24 law to a particular set of facts. (Brizzee v. Fred Meyer Stores, Inc., supra, No. CV-
25 04-1566-ST, 2007 U.S. Dist. LEXIS 99155 at *11.)
26
27
28 2
See Pickering v. Bd. of Educ., 391 U.S. 563, 88 S. Ct. 1731 (1968).
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1 D. “Substantial Ground for Difference of Opinion”


2 “To determine if a ‘substantial ground for difference of opinion’ exists under
3 § 1292(b), courts must examine to what extent the controlling law is unclear.
4 Courts traditionally will find that a substantial ground for difference of opinion
5 exists where ‘the circuits are in dispute on the question and the court of appeals of
6 the circuit has not spoken on the point, if complicated questions arise under foreign
7 law, or if novel and difficult questions of first impression are presented.’ (3 Federal
8 Procedure, Lawyers Edition § 3:212 (2010).) However, ‘just because a court is the
9 first to rule on a particular question or just because counsel contends that one
10 precedent rather than another is controlling does not mean there is such a
11 substantial difference of opinion as will support an interlocutory appeal.’ Id.
12 (footnotes omitted).” (Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010).)
13 “A party’s strong disagreement with the Court's ruling is not sufficient for there to
14 be a ‘substantial ground for difference.’ That settled law might be applied
15 differently does not establish a substantial ground for difference of opinion.” (Id.,
16 quoting Hansen v. Schubert, 459 F. Supp. 2d 973, 1000 (E.D. Cal. 2006).) “[T]he
17 standard under § 1292(b) is not [whether there exists] any ground for a difference
18 of opinion but a ‘substantial’ one.” (Stuart v. RadioShack Corp., No. C-07-4499
19 EMC, 2009 U.S. Dist. LEXIS 57963 at *9-10 (N.D. Cal. June 25, 2009) [also
20 noting that “substantial grounds for difference of opinion” may be harder to
21 establish without identifying other case law that conflicts with the challenged
22 decision].)
23 The Motion to Certify does not meet these standards.
24 E. There Are No Substantial Grounds for Difference of Opinion As
25 To Whether Depriving A Business of Valuable Patronage Triggers
26 First Amendment Scrutiny.
27 Defendants cannot seriously argue that depriving a business of valuable
28 business (in excess of $125,000, as alleged in both Plaintiffs’ original and First

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1 Amended Complaints) in retaliation for an owner’s speech, is the kind of “de


2 minimis” deprivation of benefits which the First Amendment ignores. Well-
3 established Supreme Court and Ninth Circuit case authority confirms that
4 deprivation of public patronage is actionable First Amendment retaliation. (See,
5 e.g., O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996) [public
6 patronage withdrawn from towing company]; Board of County Commissioners,
7 Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668 (1996) [public waste
8 disposal contract not renewed because of principal’s speech]; Alpha Energy Savers,
9 Inc. v. Hansen, 381 F.3d 917 (9th Cir. 2004) [county denied further work to
10 contracting company because officials were angered by principal’s criticism]. As
11 the Court correctly noted in its Order – citing Hyland v. Wonder, 972 F.2d 1129,
12 1135 (9th Cir. 1992) – the “critical question is simply whether [a plaintiff] has
13 alleged a loss of a valuable government benefit or privilege in retaliation for his
14 speech.” (Order, p. 8, second paragraph.) Moreover, retaliatory acts “with less
15 momentous consequence” are “equally egregious in the eyes of the Constitution”
16 as more momentous retaliatory acts. (Id.)
17 Defendants’ characterization of “the first legal question that must be
18 answered by the courts in this case” as “whether the right to host field trips of
19 students from a public school district” applies a preposterously minute level of
20 specificity. The courts have clearly established the overarching principle that
21 depriving a vendor of valuable business is an actionable deprivation of valuable
22 government benefits. That basic principle applies regardless of whether the
23 business at issue involves trash collection, towing, construction – or field trips.
24 The cases Defendants cite for their argument have absolutely no
25 resemblance to the misconduct alleged by Plaintiffs. Plaintiffs are not alleging that
26 Defendants merely “scolded” or “threatened” them (cf. Nunez v. City of Los
27 Angeles, 147 F.3d 867 (9th Cir. 1998), discussed at p. 11, lines 13-28 of the Motion
28 to Certify), or inflicted the “minor indignity” of demotion from a ceremonial

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1 position on a policymaking board (see Blair v. Bethel School District, 608 F.3d
2 540, 544, discussed at p. 11, lines 2-12 of the Motion to Certify). None of these
3 cases involved a real, substantial financial loss, of the kind which has been
4 repeatedly found to constitute the deprivation of a valuable public benefit. The
5 idea that a six-figure (at minimum) financial loss is an acceptable, “de minimis”
6 infringement upon a person’s rights finds no support in any of the case authority
7 cited in the Motion to Certify, nor in common sense. Six figures is real money to
8 most people, as it certainly is to Plaintiffs.
9 F. There Are No Substantial Grounds for Difference of Opinion as to
10 Whether Defendants’ Retaliatory Action Was Itself Protected
11 Speech.
12 Plaintiffs do not dispute that Defendants may design a curriculum whose
13 content is appropriate for their students, and speak (or not speak), on behalf of the
14 public entity they administer, as they see fit. That is not what they did. Unlike the
15 cases cited in the Motion to Certify (here, again, wrenched wildly out of anything
16 resembling a relevant context) Defendants did not merely exercise their rights to
17 criticize James Patrick Riley, or “disassociate” themselves from his comments,
18 making it clear (if it could possibly have been any clearer) that his personal social
19 media posts were not made on behalf of the District. Rather, they took actual,
20 tangible, substantial, adverse action, depriving Plaintiffs of valuable public
21 patronage.
22 Nor can Defendants credibly argue that their retaliatory action was merely
23 “designing the curriculum.” Defendants did not determine (for instance) to
24 discontinue field trips altogether, or adjust their content, or choose a different field
25 trip venue because they felt another venue’s presentation would better serve the
26 District’s educational objectives. No. The content3 of the field trips was (as
27
28 3
See Brown v. Li, 308 F.3d 939, 947, 951 (9th Cir. 2002) [discussing Hazelwood
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1 Plaintiffs’ pleadings plausibly allege, and Defendants accepted for purposes of the
2 Motion to Dismiss) unobjectionable, and irrelevant to Defendants’ decision. It was
3 not the content of the field trips that motivated Defendants, but the mere fact they
4 were presented at a venue affiliated with James Patrick Riley – a District-branded
5 “Enemy of the State.”
6 Defendants thus cannot credibly maintain that they were engaged in
7 “curriculum design.” They were retaliating against an individual who said
8 things public officials disliked. That was not “government speech” – that was
9 unconstitutional, retaliatory government action. While attacking a heretic’s
10 livelihood (or, for that matter, burning him at the stake) may very well send an
11 unmistakable “message” of governmental disapproval – the courts do not recognize
12 either literal or figurative autos-da-fé as permissible expressions of government
13 “speech.”
14 G. There Are No Substantial Grounds for Difference of Opinion as to
15 Whether Pickering or “Some Other Form of Interest-Balancing”
16 Must Be Applied.
17 In its Order, the Court correctly applied multiple Supreme Court and Ninth
18 Circuit authorities to conclude that “not all entities doing business with government
19 are included within the Pickering framework.” (Order, p. 8, second paragraph.)
20 The Court also concluded that “[o]n the spectrum of government entanglement, the
21 Farm falls much closer to private citizen than to government employee.” (Id., first
22 paragraph).
23
24
25
26
School District v. Kuhlmeier, 484 U.S. 260, 276; schools have a legitimate
pedagogical interest in controlling the content of educational curricula]; Boring v.
27 Buncombe Cty. Bd. of Educ., 136 F.3d 364, 370 (4th Cir. 1998) [the “legitimate
28
pedagogical interest [is] in the makeup of the curriculum of the school”]; emphasis
added.)
9
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1 Defendants do not identify any dispute between circuit courts, or other


2 recognized indicia of “reasonable grounds for difference of opinion,” beyond
3 simply declaring that they disagree with the Court (contending that the Pickering
4 balancing test is “logical”; see the Motion to Certify, p. 16, line 10) and think the
5 Court should have applied settled law differently to these particular facts.
6 Alternatively, they insist (without citation to authority) that if Pickering does not
7 apply, “some form of interest-balancing analysis must be undertaken” (Motion to
8 Certify, p. 16, lines 25-26) and that “the courts should hold, as a matter of law, that
9 the choice of a field trip venue is the prerogative of school administrators, and that
10 that legitimate interest clearly outweighs the minimal constitutional harm to
11 plaintiffs.” (Id., p. 17, lines 6-9.)
12 That last contention (apart from being irrelevant to Section 1292(b)’s
13 “reasonable grounds for difference of opinion” analysis; see Couch v. Telescope
14 Inc., supra, 611 F.3d at 633) advocates a degree of deference to government,
15 unfettered by the First Amendment, that is shockingly radical. Defendants are
16 literally contending that when it comes to selecting field trip venues, education
17 functionaries’ “prerogative” is absolute, like a medieval monarch’s. That it may be
18 wielded, without restraint, for even the most blatantly unconstitutional reasons,
19 including retaliation for disfavored speech. Plaintiffs would question whether
20 Defendants truly mean to advocate such an extremist position, so thoroughly
21 contradictory to settled law – except the Motion to Certify’s Introduction leads off
22 with this passage:
23 “[T]here are substantial grounds for difference of opinion as to whether
24 plaintiff’s right to engage in political speech insulates them from the social,
25 political, and economic consequences of that speech. Having boldly entered the
26 flames of public discussion that the First Amendment is specifically designed to
27 kindle, plaintiffs may not now seek the court’s rescue from the sparks of
28 controversy they themselves ignited.” (Motion to Certify, p. 5, lines 11-17.)

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1 If James Patrick Riley doesn’t like the heat (Defendants imply) he should
2 have stayed out of the free-speech kitchen. He has only himself to blame. He
3 “ignited” the fire; now, he cannot complain when public officials stack more wood
4 around the stake.
5 Plaintiffs are at a genuine loss as to how Defendants could possibly read the
6 Supreme Court authorities cited in the Court’s Order and come away thinking that
7 anything remotely resembling this radical position is countenanced by the First
8 Amendment. “[C]onstitutional violations may arise from the deterrent, or
9 ‘chilling,’ effect of governmental [efforts] that fall short of a direct prohibition
10 against the exercise of First Amendment rights [such as the retaliatory infliction of
11 ‘social, political and economic consequences’]”. (Laird v. Tatum, 408 U.S. 1, 11
12 (1972).) “[E]ven though a person has no ‘right’ to a valuable government benefit
13 and even though the government may deny him the benefit for any number of
14 reasons, there are some reasons upon which the government may not rely. It may
15 not deny a benefit to a person on a basis that infringes on his constitutionally
16 protected interests – especially, his interest in freedom of speech.” (Perry v.
17 Sindermann, 408 U.S. 593, 597.) This is fundamental, black-letter law, about
18 which there neither is nor can be reasonable grounds for difference of opinion.
19 Plaintiffs are not seeking “the court’s rescue” from anything but illegal retaliation
20 against the exercise of constitutional rights by abusers of the public trust.
21 H. An Immediate Appeal Would Not Materially Advance the Ultimate
22 Termination of the Litigation.
23 Defendants bear the burden of establishing that this case presents one of
24 those “hen’s teeth rare” situations where an immediate interlocutory appeal would
25 materially advance the termination of the litigation. The Motion to Certify does
26 little on this subject other than to state case law, and recite that “there are numerous
27 controlling issues of law that should be resolved by the Ninth Circuit before the
28 parties are forced to bear the time and expense of discovery and further law and

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1 motion.” (Motion to Certify, p. 18, lines 4-6.) This does not satisfy Defendants’
2 heavy burden to meet the “materially advance” standard.
3 The well-known Wright & Miller treatise explains:
4
The three [Section 1292(b)] factors should be viewed together as the
5 statutory language equivalent of a direction to consider the probable
6 gains and losses of immediate appeal. The advantages of immediate
appeal increase with the probabilities of prompt reversal, the length
7
of the district court proceedings saved by reversal of an erroneous
8 ruling, and the substantiality of the burdens imposed on the parties by a
9 wrong ruling. The disadvantages of an immediate appeal increase with
the probabilities that lengthy appellate consideration will be required,
10
that the order will be affirmed, that continued district court
11 proceedings without appeal might moot the issue, that reversal would
12 not substantially alter the course of district court proceedings, or that
the parties will not be relieved of any significant burden by reversal.
13
14 Wright, et al., 16 Fed. Prac. & Proc. Juris. 2d §a 3930, cited in Stuart v.

15 RadioShack Corp., No. C-07-4499 EMC, 2009 U.S. Dist. LEXIS 57963 at *3-4

16 (N.D. Cal. June 25, 2009); emphasis added.)

17 Thus, it is not enough for Defendants to speculatively recite the mere

18 possibility that they might win a complete victory on appeal, obtaining dismissal of

19 Plaintiffs’ action without leave to amend. The likelihood of that outcome must

20 also be established. Plaintiffs submit that (as set forth above) the likelihood of
21 Defendants persuading the Ninth Circuit to announce a special Field Trip Absolute
22 Prerogative Doctrine, as a highly particularized exception to the established
23 unconstitutional conditions doctrine, is extremely unlikely.
24 Defendants must also give at least some plausible estimate of the “length of
25 the district court proceedings saved.” It is not enough simply to recite that victory
26 on its motion to dismiss would end litigation. There should have been
27 “information about the length of trial or trial time that would be saved.”
28 (McDonnell v. Riley, No. 15-cv-01832-BLF, 2016 U.S. Dist. LEXIS 18646 at *16-

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1 17 (N.D. Cal. Feb. 16, 2016).) To be considered, a proposed interlocutory appeal


2 must appreciably shorten the time, effort, or expense of conducting a lawsuit. (In
3 re Cement Antitrust Litig., supra, 673 F.2d at 1027.) Whether a possible reduction
4 in the time, effort or expense of a lawsuit is “appreciable” requires some idea of
5 what that time, effort or expense would otherwise be. “Where the issue of relative
6 efficiency is a toss-up, [there is] no value in encouraging parties to litigate requests
7 for interlocutory appeal.” (Lillehagen v. Alorica, Inc., No. SACV 13-0092-DOC
8 (JPRx), 2014 U.S. Dist. LEXIS 67963 at *22 (C.D. Cal. May 15, 2014).)
9 Especially with regard to the third of the three alleged “controlling issues of
10 law” identified in the Motion to Certify, an interlocutory appeal would have the
11 opposite effect of advancing the termination of this litigation. Defendants contend
12 that this Court applied the wrong legal standard applicable to a business vendor
13 like Riley’s Farm, arguing that the Pickering standard “or some other form of
14 interest-balancing” should apply. Consider what would happen if Plaintiffs
15 immediately appealed on this issue, and ultimately (after the typically long
16 duration of an appeal): That would not end this litigation. Rather, discovery
17 would then proceed (since the allegations of the Complaint were also sufficient, if
18 proven, to satisfy the Pickering standard) – and the matter would go to either
19 summary judgment or (more likely) trial. (It bears noting that this process would
20 likely be much more expensive and extensive, requiring much more discovery to
21 obtain the evidence relevant to the fact-intensive balancing analysis, than it would
22 be if the case proceeds under the “private citizen” standard the Court has ruled
23 applies.) The losing party at trial would most likely then file another appeal,
24 seeking review of whether the Court got the Pickering balancing right, in light of
25 the now fully developed evidentiary record, as well as any other legal issues raised.
26 Two appeals versus one appeal. Interlocutory review, rather than reserving
27 all legal issues to be reviewed, in the regular order, in a single appeal, would
28 increase, not decrease, the time and expense of this litigation.

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1 “[A]ppeals challenging pre-trial rulings upholding pleadings against


2 demurrer only stimulate the parties to more and greater pre-trial sparring apart
3 from the merits... [A] reversal at most could lead only to a remand for repleading,
4 with possibilities of further interlocutory appeals thereafter[.]) (Picard v. Estate of
5 Madoff, supra, 464 B.R. at 584 [quoting Gottesman v. Gen. Motors Corp., supra,
6 268 F.2d at 196.)
7 III. CONCLUSION
8 Not only are there no reasonable grounds for difference of opinion as to the
9 legal issues Defendants raise in the Motion to Certify, Defendants’ radical
10 assertions of unrestrained “prerogatives” for school administrators stand squarely
11 in the face of long- and clearly-established Supreme Court authority, and indeed
12 the very core of First Amendment freedom. In addition, those issues are, by their
13 nature, inherently fact-intensive matters, and not the pure, abstract questions of law
14 that occasionally, in “hen’s teeth rare” circumstances, warrant the extraordinary
15 procedure of interlocutory appeal. An appeal now would only further delay the
16 necessary development of the factual record that Defendants have already gone out
17 of their way to conceal,4 and would only necessitate a second appeal after trial.
18 The Motion to Certify should be denied.
19
20 Date: April 15, 2019 GOE & FORSYTHE, LLP

21
22 By:/s/Thomas J. Eastmond
Thomas J. Eastmond
23 Counsel for Plaintiffs Riley’s
24 American Heritage Farms and James
Patrick Riley
25
26 4
That is, by falsely representing to Plaintiffs that the decision to discontinue Riley’s
27 Farm field trips was a decision by individual principals, when (as set forth in the
28
First Amended Complaint, drafted after discovery of incriminating e-mails) the
Superintendent himself issued a District-wide policy to that effect.
14
Case 5:18-cv-02185-JGB-SHK Document 48 Filed 04/15/19 Page 15 of 15 Page ID #:347

1
PROOF OF SERVICE OF DOCUMENT
I am over the age of 18 and not a party to this bankruptcy case or adversary proceeding. My business
2 address is: 18101 Von Karman Avenue, Suite 1200, Irvine, CA 92612
3 A true and correct copy of the foregoing document entitled (specify): OPPOSITION TO DEFENDANTS’
MOTION TO CERTIFY FOR INTERLOCUTORY APPEAL THE ORDER GRANTING IN PART AND
4 DENYING IN PART DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT will be served or
was served (a) on the judge in chambers in the form and manner required by LBR 5005-2(d); and (b) in the
5 manner stated below:

6 1. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Pursuant to


controlling General Orders and LBR, the foregoing document will be served by the court via NEF and
7 hyperlink to the document. On (date) P, I checked the CM/ECF docket for this bankruptcy case or
adversary proceeding and determined that the following persons are on the Electronic Mail Notice List to
8 receive NEF transmission at the email addresses stated below:

9  Thomas J Eastmond teastmond@goeforlaw.com


 Golnar Jabbari Fozi
10 gfozi@meyersfozi.com,dmodafferi@meyersfozi.com,kwright@meyersfozi.com,cweston@meyersfo
zi.com,npontious@meyersfozi.com,jdwork@meyersfozi.com,lklinger@meyersfozi.com
11  Daniel Stephen Modafferi
dmodafferi@meyersfozi.com,nmeyers@meyersfozi.com,gfozi@meyersfozi.com,cweston@meyersf
12 ozi.com,kwright@meyersfozi.com,jdwork@meyersfozi.com,lklinger@meyersfozi.com,twiseman@m
eyersfozi.com
13  Ryan Scott Riddles rriddles@goeforlaw.com

14 Service information continued on attached page

15 2. SERVED BY UNITED STATES MAIL:


On (date) April 15, 2019, I served the following persons and/or entities at the last known addresses in this
16 bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope
in the United States mail, first class, postage prepaid, and addressed as follows. Listing the judge here
17 constitutes a declaration that mailing to the judge will be completed no later than 24 hours after the
document is filed.
18
Service information continued on attached page
19
3. SERVED BY PERSONAL DELIVERY, OVERNIGHT MAIL, FACSIMILE TRANSMISSION OR EMAIL
20 (state method for each person or entity served): Pursuant to F.R.Civ.P. 5 and/or controlling LBR, on (date)
April 15, 2019, I served the following persons and/or entities by personal delivery, overnight mail service, or
21 (for those who consented in writing to such service method), by facsimile transmission and/or email as
follows. Listing the judge here constitutes a declaration that personal delivery on, or overnight mail to, the
judge will be completed no later than 24 hours after the document is filed.
22
 The Honorable Kenly Kiya Kato, USDC, 3rd Floor, 3470 Twelfth Street, Riverside, CA 92501-
23
3801
Service information continued on attached page
24
I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct.
25
April 15, 2019 Kerry A. Murphy /s/Kerry A. Murphy
26
Date Printed Name Signature
27
28

15