Harper v. Charter Communications, LLC ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 LIONEL HARPER, DANIEL SINCLAIR, No. 2:19-cv-00902 WBS DMC HASSAN TURNER, LUIS VAZQUEZ, and 13 PEDRO ABASCAL, individually and on behalf of all others 14 similarly situated and all ORDER RE: MOTIONS FOR aggrieved employees, RECONSIDERATION AND 15 INTERLOCUTORY APPEAL Plaintiffs, 16 v. 17 CHARTER COMMUNICATIONS, LLC, 18 Defendant. 19 20 ----oo0oo---- 21 22 I. Motion for Reconsideration 23 Plaintiffs ask the court to reconsider its order 24 compelling plaintiffs Harper, Turner, Vazquez, and Abascal to 25 arbitration (Docket No. 202) in light of the California Court of 26 Appeal’s recent decision in Ramirez v. Charter Communications, 27 Inc., 75 Cal. App. 4th 365 (2d Dist. 2022). In Ramirez, that 28 court held that Charter’s Solution Channel Agreement -- the same 1 arbitration agreement this court enforced in its prior order -- 2 was unenforceable due to procedural and substantive 3 unconscionability. See id. at 373-87. 4 A court may reconsider a prior order if it “is 5 presented with newly discovered evidence, committed clear error, 6 or if there is an intervening change in the controlling law.” 7 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 8 873, 880 (9th Cir. 2009) (citation omitted). Because Ramirez was 9 decided after the court ordered Harper, Turner, Vazquez, and 10 Abascal to arbitration, plaintiffs argue the decision represents 11 an intervening change in controlling law. (See Mot. at 9.) 12 However, as the Ninth Circuit has stated, “[d]ecisions 13 of [California’s] six district appellate courts are persuasive 14 but do not bind each other or us.” Muniz v. United Parcel Serv., 15 Inc., 738 F.3d 214, 219 (9th Cir. 2013) (citation omitted). 16 Although the Ninth Circuit has noted that federal courts 17 nonetheless “should” follow the California Court of Appeal’s 18 decisions regarding California law in most circumstances, see 19 id., this does not render the Court of Appeal’s decisions 20 binding. Because Ramirez is not binding, it does not constitute 21 a “change in the controlling law,” and plaintiffs’ motion for 22 reconsideration will therefore be denied. 23 II. Motion to Certify Order for Interlocutory Appeal 24 Plaintiffs alternatively request that the court certify 25 its order compelling arbitration for interlocutory appeal. A 26 district court may certify an order for interlocutory appeal if 27 the order (1) “involves a controlling question of law” (2) “as to 28 which there is substantial ground for difference of opinion” and 1 (3) “an immediate appeal from the order may materially advance 2 the ultimate termination of the litigation.” 28 U.S.C. 3 § 1292(b). 4 The court’s order compelling arbitration “involves a 5 controlling question of law.” Whether California law on 6 contracts and unconscionability prohibits enforcement of an 7 arbitration agreement with the provisions contained in the 8 Solution Channel Agreement is a question of law.1 That question 9 is also controlling, as it was dispositive to the court’s 10 previous order. (See Docket No. 202.) 11 This issue also presents a “substantial ground for 12 difference of opinion.” Although defendant notes that most 13 federal and California trial courts to have evaluated the 14 Solution Channel Agreement have concluded that it was not 15 unconscionable, at least one district court has held otherwise. 16 (Opp. at 27-28 (Docket No. 283)); see Durruthy v. Charter Comms., 17 18 1 Defendants cite this court’s statement that “while the Ninth Circuit has apparently not had occasion to address the 19 issue, many courts have found the question of law must be a ‘pure question of law,’ not a mixed question of law and fact or an 20 application of law to a particular set of facts.” Aldapa v. Fowler Packing Co. Inc., 1:15-cv-420 DAD SAB, 2016 WL 8731316, at 21 *1 (E.D. Cal. Aug. 26, 2016). That observation referred to 22 decisions of other circuit courts, including a Sixth Circuit decision stating, “On interlocutory appeal, we do not review the 23 district court’s findings of fact, and instead consider only pure questions of law.” Id. (quoting Park W. Galleries, Inc. v. 24 Hochman, 692 F.3d 539, 543 (6th Cir. 2012)). Nevertheless, consideration of whether plaintiffs should be released from their 25 obligation to arbitrate their claims requires no consideration of any findings of fact made by this court, and there are no 26 disputed facts regarding the contents of the arbitration 27 agreement. Accordingly, this court regards the question at issue as a pure question of law. 28 ” 1 LLC, 20-cv-1374 W (MSB), 2021 WL 254194 (S.D. Cal. Jan. 25, 2 2021). Now, on the first occasion upon which a California Court 3 of Appeal has evaluated the substantive unconscionability of the 4 agreement, it too has held that the agreement is unenforceable as 5 unconscionable. See Ramirez, 75 Cal. App. 4th at 387.2 6 Given that the Ninth Circuit has cautioned that courts 7 should “not disregard a well-reasoned decision from a state’s 8 intermediate appellate court” when that decision is highly 9 relevant, see In re NCAA Student-Athlete Name & Likeness 10 Licensing Litig., 724 F.3d 1268, 1278 (9th Cir. 2013), the 11 disagreement between the California Court of Appeal and many of 12 the trial courts to have addressed this issue indicates that a 13 substantial ground for disagreement exists. See Couch v. 14 Telescope Inc., 611 F.3d 629, 634 (9th Cir. 2010) 15 (“[I]dentification of a sufficient number of conflicting and 16 contradictory opinions would provide substantial ground for 17 disagreement . . . .”) (quoting Union Cnty. v. Piper Jaffray & 18 Co., Inc., 525 F.3d 643, 647 (8th Cir. 2008) (per curiam)). 19 Finally, an immediate appeal from this court’s order 20 “may materially advance the ultimate termination of the 21 litigation.” Plaintiffs have stated that, if the Solution 22 Channel Agreement is held to be unenforceable against Harper, 23 Turner, Vazquez, and Abascal, those plaintiffs will seek to 24 2 Defendants note that the California Court of Appeal had 25 considered the enforceability of a provision of the Solution Channel Agreement before it decided Ramirez. (See Opp. at 12-13 26 (citing Patterson v. Super. Ct., 70 Cal. App. 5th 473, 489-90 (2d 27 Dist. 2021)).) But that decision did not consider whether the Agreement as a whole was substantively unconscionable. See 28 Patterson, 70 Cal. App. 5th 473. 1 rejoin the putative class action as proposed class 2 representatives, which would necessitate a renewed motion for 3 class certification and further briefing. (See Mot. at 21-22.) 4 Further, in opposing plaintiff Sinclair’s pending 5 motion for class certification, Charter has argued that Sinclair 6 lacks standing to represent certain putative class members, (see 7 Docket No. 271 at 31-35, 50-51, 63-64), an argument that would 8 become moot if the other plaintiffs rejoin the action as proposed 9 class representatives. Interlocutory appeal would avoid the 10 expenditure of judicial resources that would result if the court 11 had to adjudicate Sinclair’s pending motion for class 12 certification only to have to revisit that decision following a 13 subsequent appeal. An interlocutory appeal will also allow for 14 greater certainty and finality in light of Ramirez and, 15 regardless of the result, will allow the court and the parties to 16 move forward with the determination of class certification 17 without distraction. 18 Because the court therefore concludes that 28 U.S.C. 19 § 1292(b)’s requirements are satisfied, the court will certify 20 its order compelling plaintiffs Harper, Turner, Vazquez, and 21 Abascal to arbitration for interlocutory appeal. 22 IT IS THEREFORE ORDERED that plaintiffs’ motion for 23 reconsideration (Docket No. 275) be, and the same hereby is, 24 DENIED. 25 IT IS FURTHER ORDERED that plaintiffs’ alternative 26 motion (Docket No. 275) for certification for interlocutory 27 appeal of the court’s order compelling arbitration (Docket No. 28 202), be, and the same hereby is, GRANTED. nee nnn enn ne nnn nnn nnn nen nnn nen nn I I NE 1 All proceedings in this case are hereby STAYED pending 2 resolution of the interlocutory appeal, and the hearings on the 3 instant motion (Docket No. 275) and on defendant’s motion for 4 leave to file a surreply (Docket No. 285), currently calendared 5 for May 2, 2022, and on plaintiffs’ motion for class 6 certification (Docket No. 257), currently calendared for May 31, 7 2022, are hereby VACATED. 8 IT IS SO ORDERED. 9] Dated: April 22, 2022 bette 2d. □□ 10 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28