United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

IN RE CALIFORNIA TITLE INSURANCE

ANTITRUST LITIGATION

THIS DOCUMENT RELATES TO ALL

ACTIONS

 /

No. 08-01341 JSW

ORDER GRANTING

DEFENDANTS’ JOINT MOTION

FOR CERTIFICATION OF

INTERLOCUTORY APPEAL

PURSUANT TO 28 U.S.C. § 1292(b)

AND FOR A STAY OF

PROCEEDINGS

Now before the Court for consideration is Defendants’ Joint Motion for Certification of

Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) and for a Stay of Proceedings. The Court

has considered the parties’ papers, relevant legal authority, and the record in this case, and

concludes that the matter is suitable for disposition without oral argument. See N.D. Civ. L.R.

7-1(b). For the reasons set forth in the remainder of this Order, Defendants’ motion is

GRANTED, and this matter is STAYED.

On November 6, 2009, the Court issued an order granting in part and denying in part

Defendants’ Joint Motion to Dismiss Plaintiffs’ Second Amended Class Action Complaint

(“SAC”). In that Order, the Court denied, in part, Defendants’ motion to dismiss Plaintiffs’

claim for relief under California Business and Professions Code § 17200 and rejected

Defendants’ argument that such a claim was not preempted by California Insurance Code §

12414.26. (See Docket 144 (Nov. 6, 2009 Order at 12:10-13:5).) Defendants now move to

certify that ruling for interlocutory appeal. 

//

Case 3:08-cv-01341-JSW Document 159 Filed 03/03/10 Page 1 of 3
United States District Court

For the Northern District of California

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Pursuant to 28 U.S.C. § 1292(b), the Court has discretion to certify an interlocutory

order for appeal when (1) the order involves a controlling issue of law; (2) there is substantial

ground for differences of opinion as to that question; and (3) an immediate appeal may

materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). Certification

for interlocutory appeal should be applied sparingly and only granted in exceptional situations

in which allowing an interlocutory appeal would avoid protracted and expensive litigation. See,

e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978); In re Cement Antitrust

Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982); United States v. Woodbury, 263 F.2d 784, 788

n.11 (9th Cir. 1959). The party seeking certification of an interlocutory order has the burden of

establishing the existence of such exceptional circumstances. Coopers & Lybrand, 437 U.S. at

475. A court has substantial discretion to decide whether to grant a motion for certification. 

Valdovinos v. McGrath, 2007 WL 2023505 at *2 (N.D. Cal. July 12, 2007) (citing Brown v.

Oneonta, 916 F. Supp. 176, 180 (N.D.N.Y. 1996)). The Court concludes that Defendants have

met their burden.

First, although Plaintiffs argue to the contrary, Defendants have identified a controlling

issue of law. Specifically, whether, properly interpreted, California Insurance Code § 12414.26

preempts Plaintiffs Section 17200 claim. Although resolution of that question may require an

examination of the factual allegations set forth in the SAC, it is a purely legal issue. 

Second, there must be a substantial ground for difference of opinion on the issue. 28

U.S.C. § 1292(b). “A substantial ground for difference of opinion is not established by a

party’s strong disagreement with the court’s ruling; the party seeking an appeal must make

some greater showing.” Valdovinos, 2007 WL 2023505 at *2 (citing Mateo v. M/S Kiso, 805 F.

Supp. 792, 800 (N.D. Cal. 1992)). There is dearth of precedent on the legal issue presented to

the Court on the motion to dismiss Plaintiffs’ Section 17200 claims. In light of the lack of

precedent bearing on the issue, the Court concludes that Defendants have shown a substantial

ground for a difference of opinion exists. See In re Cintas Corp. Overtime Pay Arb. Litig., 2007

WL 1302496 at *2 (N.D. Cal. May 2, 2007) (citing APPC Servs., Inc. v. AT&T Corp., 297 F.

Supp. 2d 101, 107 (D.D.C. 2003).

Case 3:08-cv-01341-JSW Document 159 Filed 03/03/10 Page 2 of 3
United States District Court

For the Northern District of California

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Third, an interlocutory appeal must be likely to advance the ultimate termination of the

litigation. 28 U.S.C. § 1292(b). Whether an appeal may materially advance the termination of

the litigation is “linked to whether an issue of law is ‘controlling’ in that the court should

consider the effect of a reversal by the Ninth Circuit on the management of the case.” 

Valdovinos, 2007 WL 2023505 at *2 (citing Mateo, 805 F. Supp. at 800). In this case, the

Section 17200 claim is the only claim pending against the remaining Defendants. Moreover, as

set forth above, if Plaintiffs’ claims are preempted by Section 12414.26, such a ruling would

effectively resolve this litigation. Therefore, the Court concludes that Defendants also have met

their burden to show that an interlocutory appeal is likely to advance the ultimate termination of

the litigation. 

Accordingly, the Court, in its discretion GRANTS Defendants’ motion for certification

pursuant to 28 U.S.C. § 1292(b), AMENDS the Order dated November 6, 2009 to certify it for

interlocutory appeal, and STAYS this matter pending a decision by the Ninth Circuit as to

whether it will hear an interlocutory appeal and, if it accepts the appeal, pending resolution of

that appeal. The parties shall update the Court by joint submission within five court days of

resolution of the appeal, or every 120 days, whichever is sooner.

IT IS SO ORDERED.

Dated: March 3, 2010 

JEFFREY S. WHITE

UNITED STATES DISTRICT JUDGE

Case 3:08-cv-01341-JSW Document 159 Filed 03/03/10 Page 3 of 3